POONAM SRIVASTAV, J. Heard Sri Amit Kumar Srivastava, learned Counsel for the applicant and Sri Sanjay Kumar Singh Advocate for Special Public Prosecutor (Narcotic Control Bureau) Additional Stating Counsel. Union of India. 2. Counter and rejoinder affidavits have been exchanged which are on record. 3. The brief facts of the case are that Narcotic Control Bureau (hereinafter referred as N. C. B.) intercepted the applicant on 29. 12. 2006 and recovered 600 grams Heroin from the possession of the accused. The statement of the accused/applicant was recorded under section 67 N. D. P. S. Act. It is alleged that he admitted possession of narcotic substance, its weight was 600 grams. The prosecution asserts that the statement of Rajesh Keshari was recorded voluntarily and necessary conclusion is that he indulged in illicit trafficking of Heroin and. other narcotic substance. Conse quently, he was arrested and remanded to judicial custody on 30. 12. 2006. The prosecution further asserts that the provisions of N. D. P. S. Act has strictly been complied with. It is also alleged that the applicant has criminal antecedents. 4. Sri Sanjay Kumar Singh has brought to my notice details of sampling process of the alleged 600 grams of Heroin. He submits that after recovery of Heroin on 29. 12. 2006, two samples of 5 grams were taken out and sealed in conformation with the provisions and procedure laid down by Rules and Act in presence of independent witnesses as well as the officers of N. C. B. , all of them endorsed their signatures. On 30. 12. 2006 after taking remand from the Magistrate at Varanasi, the articles were sent on 31. 12. 2006 to GOVERNMENT OPIUM AND ALKALOID WORKS, GHAZIABAD (U. P.) for chemical examination. The report of chemical examiner dated 19. 2. 2007 is as under :- " The sample was received duly sealed, Net Wt. = 4. 68 gm. The sample is in the form of Browneus Powder. On the basis of chemical and chromatographic examination, it is concluded that the sample under reference answer positive test for diacetylmorphine (Heroin) and falling under Sr. No. (xvi) (e) to section 2 to Chapter 1 of N. D. P. S. Act, 1985. % of diacetylmorphine (Heroin) in the sample is 5. 67% (five decimal six seven only) Sealed remain sample (Net Wt. = 1. 88 gm) will be returned separately. " 5. No. (xvi) (e) to section 2 to Chapter 1 of N. D. P. S. Act, 1985. % of diacetylmorphine (Heroin) in the sample is 5. 67% (five decimal six seven only) Sealed remain sample (Net Wt. = 1. 88 gm) will be returned separately. " 5. Learned Counsel for the applicant has vehemently argued that the assertion of the prosecution is far fetched. The mandatory requirement of the Act has not been complied with. The first submission is that the recovery memo is completely silent so for the manner in which the alleged recovered article was weighed. The argument is that perusal of the recovery memo suggests that there was no weighing scale etc. and, therefore, the weight given by the prosecution is only on an assumption. Besides no independent witnesses were examined at the time of his arrest. The search alleged is doubtful and possibility of plantation cannot be ruled out. Learned Counsel has tried to lay emphasis on the report of chemical analysis where the percentage of diacetylmorphine (heroin) in the sample sent for chemical analysis was detected only 5. 67%, therefore, the total recovery of 600 grams will only contain 34. 02 grams of diacetylmorphine (Heroin ). Since the analysis report is completely silent regarding existence of any other contraband or narcotic substance therefore the quantity of recovered diacetylmorphine is very small. This quantity is very much below the commercial quantity provided in the Act and therefore the applicant is entitled to be released on bail. 6. The next argument on behalf of the applicant is on the basis of several decisions of the Apex Court, Ansar Ahmad v. State Government of N. C. T. of Delhi, 2005 (3) JCC, 193 Ouseph alias Thankachan v. State of Kerala, 2004 (4) SCC 466 and Pappu @ Jitendra v. State of U. P. , 2006 (54) ACC 422. The Honble Supreme Court held that the actual percentage of the narcotic substance present in the sample is a significant consideration and, therefore, in view of section 21 of the Act, three classifications vis-a-vis the sentence is in ratio of the quantity such as small quantity, intermediate quantity and commercial quantity. The emphasis is on the actual quantity of the narcotic substance and not the entire quantity recovered. 7. This argument of the learned Counsel for the applicant is extraneously opposed by Sri Sanjay Kumar Singh. The emphasis is on the actual quantity of the narcotic substance and not the entire quantity recovered. 7. This argument of the learned Counsel for the applicant is extraneously opposed by Sri Sanjay Kumar Singh. He submits that for the purpose of N. D. P. S. Act and in order to ascertain whether recovered quantity of Heroin is small or commercial or in between a quantity, the entire weight of preparation containing more than 0. 2% diacetylmorphine shall be taken into consideration. In the instant case it is 600 grams and not slightly more than 30 grams as argued on behalf of the applicant, on the basis of percentage found by chemical analyst. Heroin is an opium derivative and is manufactured drug, thus all preparations or solutions or mixture etc. with any other substance, whatever be the purity will come within the ambit of section 21 of the N. D. P. S. Act. The percentage of diacetylmorphine is irrelevant. 8. Learned Counsel for the applicant emphasized on the amendment of 2001 of the N. D. P. S. Act specially the object and reasons. The stress is on the consideration that while amending the Act in the year 2001, it was proposed to punish and award deterrent sentences to the drug traffickers who traffic in significant quantity but the addicts were not liable for such severe punishment. The Act was to dissuade and only a reformative approach towards such addicts. In view of this object, learned Counsel for the applicant Sri Amit Kumar Srivastava tried to demonstrate that the percentage of quantity of the narcotic in the sample recovered is only 34. 02 grams which cannot be said to be for any other use but for personal use and since the applicant is in jail since December, 2006, therefore this is an additional circumstance for enlarging the applicant on bail. It is also argued that one of the witnesses of recovery namely Kamal Kumar Pandey is the pocket witness of N. C. B. and witness Sunil Gupta declined to support the prosecution. The criminal history of the applicant is also in respect of another case under N. D. P. S. Act as well as section 25 Arms Act. In these cases, the applicant has already been acquitted, therefore, there is no criminal history of the applicant. 9. The criminal history of the applicant is also in respect of another case under N. D. P. S. Act as well as section 25 Arms Act. In these cases, the applicant has already been acquitted, therefore, there is no criminal history of the applicant. 9. Counsel for the Union of India has placed section 2 and its sub-sections which defines varieties of concoctions; Section 2 (x) "manufacture", in relation to narcotic drugs or psychotropic substances, includes- (1) all processes other than production by which such drugs or substances may be obtained; (2) refining of such drugs or substances; (3) transformation of such drugs or substances, and (4) making of preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances: (xi) "manufactured drug" means- (a) all coca derivatives medicinal can-nabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug; but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Guzette, declare not to be a manufactured drug; (xiv) "narcotic drug"-means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs; (xv)" opium" means- (a) the coagulated juice of the opium poppy: and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0. 2 percent of morphine; (xvi) "opium derivative" means- (a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (c) phenanthrene alkaloids, namely, morphine, codeine, the baine and their salts; (d) diacetylmorphine, that is the alkaloid also known as dia-morphine or heroin and its salts; and (e) all preparations containing more than 0. 2 per cent of morphine or containing any diacetylmorphine; (xvii) "opium poppy" means- (a) the plant of the species Papaver somniferum L; and (b) the plant of any oilier species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purpose of this Act. (xx) "preparation", in relation to a narcotic drug or Psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or substances; The Heroin or diacetylmorphine as defined in section 2 (xvi) (d) is an opium derivative and, therefore, with or without any neutral material of the coagulated juice of the opium poppy will be covered and only the percentage of alkaloid cannot be taken into consideration. 10. The argument of the Counsel for the applicant is that the other substance has not been analysed and it is not narcotic substances whereas the learned Counsel for N. C. B. submits that it is preparation within the meaning of section 2 (xx) and the entire weight is to be taken into consideration, the percentage given in the analysis report is not significant. The preparation as shown to be recovered from the possession of the applicant is admittedly more than 250 grams which is the outer limit and definitely more than the commercial quantity and, therefore, the applicant cannot claim any benefit on the basis of percentage of purity or potency of diacetylmorphine present in the preparation, mixture or solution whatsoever. The different definitions have been placed only to substantiate the prosecution case that the applicant was in possession of more than the commercial quantity. 11. N. D. P. S. Act or Rules neither prescribes any minimum percentage of purity of diacetylmorphine for its possession nor mere is any statutory provision under the Act prescribing the mode and manner for calculating the weight of the recovered substance manufactured drug or preparation etc. 12. Learned Counsel for the Union of India further submits that reliance placed by the Counsel for the applicant in the case of Ansar Ahmad (supra) is not relevant and should not be taken into consideration. 12. Learned Counsel for the Union of India further submits that reliance placed by the Counsel for the applicant in the case of Ansar Ahmad (supra) is not relevant and should not be taken into consideration. The Delhi High Court decided a bunch of bail applications of different accused by a common order including that of one accused Guru Bux @ Baxi. The order granting bail is subjudice before the Apex Court. The order issuing notice in the SLP preferred on behalf of the State of N. C. T. of Delhi v. Guru Bux, has been placed before me along with written submission. While commenting on the said decision, Counsel for Union of India states that this decision is against the statutory provisions and the decision in the case of Ouseph alias Tliank-achan (supra) is not applicable to the facts of the present case. So far the case Pappu @ Jitendra v. State of U. P. , is concerned, the other judgments relied upon by the Counsel for Union of India has not been considered and discussed. Reliance has been placed by the learned Standing Counsel in the case of Yogesh Tyagi and others v. State, 2004 CLJ 3907. Delhi High Court held that the percentage in relation to heroin is only indicative of purity/potency and not the weight. The percentage of diacetylmorphine is immaterial since the Act does not prescribe any minimum percentage, mere possession of the contraband article is sufficient and while taking into consideration that the person from whose possession Heroin is recovered, will come in the category for awarding punishment as provided under section 21 of the Act. Thus the High Court was of the view that be it in any form, mixture, solution, preparation whatsoever, the total quantity is material. The Court was also of the view that pure Heroin is rarely sold on the street. The user is never aware of its strength. A bag contents may contain only a portion of heroin. The remainder could be sugars, starch, powdered milk, or quinine. Generally the presence of heroin ranges from 1 to 10 percent. Similar view was expressed in the case of Amar Singh Ramji Bhai Barot v. State of Gujarat, 2005 (53) ACC 496. It was a case where 920 grams of Opium was recovered from the accused and on analysis only 2. Generally the presence of heroin ranges from 1 to 10 percent. Similar view was expressed in the case of Amar Singh Ramji Bhai Barot v. State of Gujarat, 2005 (53) ACC 496. It was a case where 920 grams of Opium was recovered from the accused and on analysis only 2. 8% anhydride morphine was detected but the Apex Court held that it was an opium derivative and falls within the "manufactured drugs" and he was found guilty and punishment was imposed under section 21 (c) for 10 years R. I. and fine of Rs. One lac. Similar view was adopted by Kerala High Court in the case of Micheal Raj v. The Intelligence Officer, Narcotic Control Bureau, 2005 Cri. LJ. 1817 and also in bail application of Yogendra Pal Singh v. State of U. P. , 2007 (57) ACC 1018. On close perusal of all these decisions, it is absolutely clear that the percentage of diacetylmorphine is not very relevant for ascertaining the quantity of the recovered Heroin. The Act does not prescribe any minimum percentage of purity or potency of diacetylmorphine for its possession to be unlawful. . 13. The argument of the learned Counsel for the applicant that since the percentage if calculated on the basis of analysis report was only 34. 02 grams which is very small quantity and cannot be said to be punishable under section 21 (c) of the Act, I do not agree with this submission of the learned Counsel for the applicant. The percentage contents cannot be used for calculating small or commercial quantity. It is only for the purpose of fixing the cost of the contraband article in the international market. The drugs containing the high percentage are sold at higher price whereas lesser contents will not fetch an equal price. Learned Counsel has not been able to show any such provision which indicates that the purity/potency of the contraband good is the main consideration and not the entire weight. Perusal of the recovery memo also reveals that the applicant admitted that Heroin was going to be delivered to one person namely Sunil Gupta and the person from whom contraband article was brought is one Deepu, which was 600 grams in weight, thus the suggestion that the quantity was small quantity and Amending Act of 2001 prescribes lesser punishment, is also not substantiated. It is nowhere asserted by the learned Counsel that Heroin was meant for his personal consumption and he was a drug addict. In view of these observations and perusal of various decisions, it cannot be adjudicated at this stage that the quantity recovered was whether small or commercial. The observations in this order will however not be treated as observation on merit. This is a bail application and the applicant is in jail since December, 2006. This Court had passed an order dated 9. 10. 2007 directing the District Judge, Varanasi to fix the trial twice a week till decided and had also asked for report regarding progress of the trial by the next date fixed which was 5. 11. 2007. A supplementary affidavit was filed on 5. 11. 2007 annexing the copy of the order sheet of the trial commencing from 18. 6. 2007 up to 15. 10. 2007. A clear assertion was that no witness has been examined so far and there is no report of the District Judge, Varanasi available on record. Office was also directed to send a copy of the order to the District Judge, Varanasi for compliance. I do not find any office report to the effect that the order was communicated to the District Judge, Varanasi. No doubt the applicant is in jail since December, 2006 and the order sheet shows that no witness has been examined but at the same time I cannot loose sight of the fact that the applicant is in possession of 600 grams of Heroin which is more than the commercial quantity. I am not inclined to grant bail at this stage. The bail application is accordingly rejected. 15. The learned Sessions Judge, Varanasi is directed to complete the trial as expeditiously as possible, preferably, within a period of three months from the date, a certified copy of this order is produced before him. In the event of failure to do so, the applicant will be at liberty to approach this Court. Office is also directed to communicate this order to the learned Sessions Judge. Varanasi forthwith. .