( 1 ) THE petitioner has been seeking regular bail. He is accused No. 1 in S. C. No. 172 of 2009 on the file of the Metropolitan Sessions Judge (Special Court under the Narcotic Drugs and psychotropic Substances Act, 1985), hyderabad. ( 2 ) THE petitioner is alleged to have committed the offences punishable under sections 22, 27-A and 29 of the Narcotic drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act' ). He has been in judicial custody since 6-9-2008. The specific allegation against the petitioner is that on specific information that the petitioner herein would be attempting to collect alprazolam, a psychotropic substance, on 6-9-2008, the officers of directorate of Revenue Intelligence visited the godown of M/s. Sangeetha Travels, afzalgunj, Hyderabad, and were waiting there with two mediators, that at about 11. 00 a. m. the petitioner enquired about the consignment that was booked in the guise of piperzine from Aurangabad, Maharashtra, that the name of the consignee was mentioned as M/s. Laxmi Trading, Ameerpet, hyderabad and that the parcel when opened found that it contained off-white powder weighing 2. 882 Kgs. Samples were taken and were sent for analysis. The forensic analysis report in Lab No. 2344, dated 14-10-2008, stated that the sample is of off-white powder and answers the test for the presence of alprazolam. However, the quantitative sample analysis was not done. The petitioner is alleged to have made a confessional statement on 7-9-2008. An amount of rs. 90,000/-, one big scissor, one small scissor, scoop, Hacksaw blade, polythene covers and a chit containing certain information like perfect chemicals, phone numbers and some numbers were found in the red colour bag carried by the petitioner. The bail petitions filed by the petitioner have been dismissed by this Court in Crl. P. 7503 of 2008, dated 21-11-2008; Crl. P. No. 7884 of 2008 dated 27-1-2009 and Crl. P. No. 4469 of 2009, dated 27-8-2009. ( 3 ) LEARNED counsel for the petitioner submitted that speedy trial has been recognized as one of the facet of right to life, that the petitioner has been languishing in jail for the last nine months and further incarceration is not at all justified. P. No. 4469 of 2009, dated 27-8-2009. ( 3 ) LEARNED counsel for the petitioner submitted that speedy trial has been recognized as one of the facet of right to life, that the petitioner has been languishing in jail for the last nine months and further incarceration is not at all justified. It is also submitted that the children of the petitioner are unable to meet their educational expenses and all the family members of the petitioner are put to untold miseries and there is no scope for commencement of trial in the near future. It is also submitted that neither any lorry receipt nor any other document to claim that the parcel was seized from the possession of the petitioner. It is also submitted that alprazolam is a medicine under the schedule to the Drugs and cosmetics Act, 1940. It is also submitted that alprazolam is mentioned in schedule-II of the Act and not in schedule-I and that the alprazolam being a medicine coming under the Drugs and Cosmetics Act, 1940, possession of psychotropic substance is not an offence attracting the provisions of the act. Learned counsel submitted that the ndps Act, 1985, has been amended by amendment Act, 1989, which came into force with effect from 29-5-1989, that the amendment introduced the concept of small quantity, commercial quantity and intermediate quantity, that entry No. 178 says that the small quantity of alprzolam is 5 grams and commercial quantity is 100 grams, that if it is small quantity, the punishment is only for a period not exceeding six months, that if the contravention is less than commercial quantity, no minimum punishment is provided and that if it is commercial quantity, the punishment provided is minimum 10 years with a fine of rs. 1. 00 lakh under Section 22 of the Act. Learned counsel submitted that there is no material that the petitioner dealt with the commercial quantity of psychotropic substance and it is the matter of mere speculation. It is also submitted that alprazolam is not a scheduled item in schedule I and that it is shown only in schedule II that there is only prohibition of export of alprazolam under Rule 53 of the narcotic Drugs and Psychotropic Substances rules, 1985. It is also submitted that alprazolam is not a scheduled item in schedule I and that it is shown only in schedule II that there is only prohibition of export of alprazolam under Rule 53 of the narcotic Drugs and Psychotropic Substances rules, 1985. It is also submitted that under rule 53, import into and export out of India of the Narcotic Drugs and Psychotropic substances specified in Schedule I is prohibited and Rule 53-A prohibits export of any of the Narcotic Drugs and Psychotropic substances specified in Schedule-II to the countries or regions of such country specified therein. It is further submitted that Rule 64 envisages that no person shall manufacture, possess, transport, import or export interstate, sell, purchase, consume or use any of the psychotropic substances specified in Schedule-I. He relied on the judgment of the Supreme Court in State of Uttaranchal v. Rajesh Kumar Gupta (1) 2007 (1) Crimes 6 (SC), wherein it is held as follows: "if the said drug do not find place in schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains prohibitory clause, violation whereof leads to penal offences thereunder. " It was also observed as follows:"section 37 of the 1985 Act must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right to party to obtain bail which is otherwise a valuable right for all practicable purposes. " He has also relied on the decision in the case e. Micheal Raj v. Narcotic Control Bureau (2) 2008 (2) ALT (Crl.) 110 (SC) = 2008 (4) SCJ 265 = 2008 (5) SCC 161 , wherein it was held as follows:1. The provisions of the NDPS Act were amended by the Narcotic drugs and Psychotropic substances (Amendmenf) Act, 2001 (Act 9 of 2001) (w. e. f. 2-10-2001), which rationalized the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried. 2. Thus, by the amending Act, the sentence structure changed drastically. "small quantity" and "commercial quantity" were defined under Section 2 (xxiii-a) and section 2 (vii-a) respectively. New section 21 also provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material. 3. 2. Thus, by the amending Act, the sentence structure changed drastically. "small quantity" and "commercial quantity" were defined under Section 2 (xxiii-a) and section 2 (vii-a) respectively. New section 21 also provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material. 3. As per Entry 56 of the Notification dated 19-10-2001 issued by the central Government which deals with heroin, small quantity has been mentioned as 5 gm and commercial quantity has been mentioned as 250 gm. 4. So, the basis question for decision is whether the contravention involved in the case is small, intermediate or commercial quantity under section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused. ( 4 ) THE above judgment was referred to by the Supreme Court in State of NCT of Delhi v. Ashif Khan alias Kalu (3) 2009 (4) SCC 42 . Thus, it is held that the percentage of Narcotic drug/psychotropic Substance translated into weight is relevant. Reliance is also placed on the decision in Rachan Singh v. Directorate of revenue Intelligence (4) 2009 (19) ILR (DLH)124, wherein it was held as follows: "section 8 (c) of the Act thus clearly prohibits the production, manufacture, possession, sale, purchase, etc. of any psychotropic substance "except for medical and scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder". In other words, if the recovered substance is a medicine and is to be used for medicinal purposes, then the manner and extent of its production, manufacture, possession, sale, purchase, use etc. shall be as provided in the NDPS Act or the Rules or orders made thereunder. The prohibition as to possession, etc. contained in Rule 64 of the NDPS Rules applies only to those psychotropic substances which are specified in Schedule I to the NDPS Rules and is, therefore, by necessary implication not applicable to those psychotropic substances, as the one recorded in the instant case, which, though are listed in the Schedule to the ndps Act, are not contained in Schedule i to the Rules framed thereunder. The recovered substance in the instant case is Alprazolam, which is a Schedule 'h' drug within the meaning of Dandc Act and Rules and clearly, therefore, its manufacture, sale, etc. is regulated by the Dandc Act and the Rules framed thereunder. " ( 5 ) LEARNED Special Public Prosecutor submitted that the offence falls under section 8 (c) of the Act and, therefore, possession and transport of Narcotic drugs or psychotropic substances is an offence except for medical or scientific purposes. It is also submitted that Rule 64 is applicable only in case of export or import. It is also submitted that the petitioner himself has given a confessional statement and the same is admissible and it shows that the petitioner was dealing with alprazolam for commercial purpose. It is also submitted that the earlier bail petitions of the petitioner have been dismissed. It is also submitted that the total quantity ceased during the course of investigation is to be taken into consideration to decide whether it is commercial quantity or not. In support of his contention, he relied on the judgment of the Supreme Court in appeal (Crl.) 1201 of 2005, dated 14-5-2007 (Peter John v. The Superintendent of customs), wherein it held as under: "it was lastly urged that though the chemical Analyst had reported the presence of Diazepam, he had not given particulars as to the proportion in which its components were found. Counsel for the appellant placing reliance on the judgment of this Court reported in (Amarsingh Ramjibhai Barot v. State of gujarat (2005) 7 SC 550) submitted that this may have a bearing on the question of sentence. In the instance case, we are concerned with Diazepam. According to the notification, 20 grams of diazepam is concerned to be small quantity. Any quantity in excess of 500 grams is commercial quantity. In the instant case 1. 528 Kilograms of diazepam was found. In these facts the case is clearly covered by Section 22 (c)of the Act. We, therefore, find no merit in any of the submissions urged on behalf of the appellant Ravindran. His appeal fails and is, therefore, dismissed. " ( 6 ) HOWEVER, the learned counsel for the petitioner submitted the latest judgment of the Supreme Court in State of NCT of Delhi v. Ashif Khan alias Kalu's case (3 supra ). We, therefore, find no merit in any of the submissions urged on behalf of the appellant Ravindran. His appeal fails and is, therefore, dismissed. " ( 6 ) HOWEVER, the learned counsel for the petitioner submitted the latest judgment of the Supreme Court in State of NCT of Delhi v. Ashif Khan alias Kalu's case (3 supra ). It appears that where there are two decisions of the supreme Court has to be followed. ( 7 ) THE only point for consideration is whether the petitioner is entitled for bail. ( 8 ) ADMITTEDLY, the petitioner has been in judicial custody since 6-8-2008 i. e. more than a year. It is also not in dispute that where commercial quantity is involved, an accused shall not be enlarged on bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail. Thus, the rigor under Section 37 of the Act is applicable where the prosecution prima facie establishes that the commercial quantity is involved and where severe punishment is provided, strict proof of prosecution case is required. Though on earlier occasions, the bail petitions filed by the petitioner have been dismissed, but the fact remains that the final analysis of the report is as follows: "the sample is in the form of off-white power. It answers the tests for the presence of Alprazolam. Weight or remnant (Unexpended portion) Sample} along with plastic cover }=2. 47 note:- The quantitative analysis of the sample could not be carried out as the specified instruments are not working. " ( 9 ) THUS, it is clear that the percentage of alprazolam could not be determined in the test. Therefore, it cannot be definitely said that the seized substance contains commercial quantity of 100 gms of alprazolam. Though the quantity is 2. 882 kgs of white powder and there is every possibility of percentage of alprazolam being more than 100 grams, but in criminal cases no presumption can be drawn unless law provides the same. Therefore, whether it is small quantity or commercial quantity cannot be determined at this stage. What is the effect of not mentioning alprazolam in schedule I or II need not be gone into at this stage. Therefore, whether it is small quantity or commercial quantity cannot be determined at this stage. What is the effect of not mentioning alprazolam in schedule I or II need not be gone into at this stage. In the above circumstances, I am inclined to grant bail to the petitioner because right to fair trial includes speedy trial and the petitioner cannot be denied such a right when there is no scope of trial in the near future and, particularly, when there is no strict proof of percentage of alprazolam in the sample sent for chemical analysis. ( 10 ) IN the result, the Criminal Petition is allowed. The petition/a-1 shall be enlarged on bail on his executing a personal bond for a sum of Rs. 20,000/- (Rupees Twenty thousand Only) with two sureties for a like sum each to the satisfaction of the metropolitan Sessions Judge (Special Court for the Narcotic Drugs and Psychotropic substances Act, 1985), Hyderabad. Criminal Petition is allowed