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2008 DIGILAW 5 (SC)

Biswajit Chandra @ Kanu v. State of West Bengal

2008-01-03

S.B.SINHA, V.S.SIRPURKAR

body2008
ORDER : 1. Leave granted. 2. Bail granted to the appellant by the learned Trial Court has been cancelled by the High Court by reason of the impugned judgment, opining that as 545 gms. of Morphine was found to be in possession of the appellant herein and another person, and in that view of that matter sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985, ("NDPS Act", for short) was attracted in terms whereof he was entitled to bail on the expiry of 180 days and not on the expiry of 90 days. 3. Learned counsel appearing on behalf of the appellant has drawn our attention to the fact that although 545 gms. of contraband was recovered, upon chemical analysis thereof 23.17% of morphine was detected therein and in that view of the matter, the total content of the narcotic would be 126.27 gms. only, which is more than Small quantity but lesser than the Commercial quantity. 4. Indisputably, the commercial quantity so far as morphine is concerned, as specified in the Notification issued under sub-sections (viia) and (xxiiia) of Section 2 of the NDPS Act is 250 gms, as contained in item No. 56 therein. Item No. 239 thereof reads as under: Any mixture or preparation that of with or without a natural material, of any of the drugs mentioned therein. Asterisk * and ** appended to the said notification read thus: " *Lesser of the small quantity between the quantities given against the respective drugs or psychotropic substances mentioned above forming part of the mixture. ** Lesser of the Commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture. " 5. In that view of the matter, we are of the opinion that the learned counsel appearing on behalf of the appellant is correct to the extent that the seized article would not come within the purview of 'Commercial quantity' as specified in the said notification. 6. For the reasons aforementioned, the impugned judgment is set aside and the appellant is directed to be released on bail on furnishing bail bond for Rs. 25,000/- with two sureties each of the like amount to the satisfaction of the learned Trial Judge. The appeal is allowed accordingly. SLP/Appeal allowed.