ORDER : 1. The petitions are filed, under Section 437 and 439 of the Criminal Procedure Code, seeking grant of bail to the petitioners, who are A1 and A2 respectively, in F.No.DRI/HZU/48D/ENQ-15(lNT-31)/ 2016 now numbered as SC.No.52 of 2077 on the file of the I Additional District and Sessions Judge, tvledak at Sangareddy. The offences alleged are under Sections 8. 9, 22, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). 2. Heard the counsel for the petitioners and Mr. Anil Prasad Tiwari, Special Public Prosecutor appearing for the respondent. 3. The case of the prosecution is that as per the gist of the intelligence received by the Senior Intelligence Officer, DRI, a search was conducted in the premises of M/s. Venkata Raghava Labs Private Limited where A1 was found to be present and he informed that he entered into agreement with the General Manager of the said labs, to manufacture a drug named Dothiepin in the factory premises. On further enquiry, he admitted that he was manufacturing Alprazolam and that it is available in the drier available in a room adjacent to the production block. The officers found 48 trays containing brownish powder, in the form lumps/flakes and total quantity was seized and the quantity was found to be 132 Kgs in total. 4. The quantity, according to the prosecution, being above 100 gms of Alprazolam, falls under the commercial quantity as per the schedule of the Act. 5. The counsel for the petitioners relies on the chemical analysis report dated 08.02.2017, which is to the effect that the quantitative analysis of the sample could not be carried out. The report also shows that the sample sent to the FSL is in the form of off-white lumps, flakes and coarse powder. It answers the test for the presence of Alprazolam. It is on the basis of this observation made in the chemical analysis report, that the counsel contends that the entire powder, allegedly, seized from the possession of the petitioners cannot be said to be Alprazolam and that it only contains Alprazolam. He relies on the report, which shows that quantitative analysis could not be carried out and contends that in such circumstance, the quantity has to be considered as only a small quantity. He relies on the report, which shows that quantitative analysis could not be carried out and contends that in such circumstance, the quantity has to be considered as only a small quantity. In that regard, he relies on a decision of the Supreme Court reported in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau (1) 2008 (2) ALT (Crl.) 110 (SC) : (2008) 5 SCC 161 wherein the Supreme Court held as under: "Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending material. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms, and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity, in the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment. " 6. The Special Public Prosecutor relies on a notification, which was issued in the year 2009. " 6. The Special Public Prosecutor relies on a notification, which was issued in the year 2009. subsequent to the above decision, which is dated 18.11.2009 to contend that the entire material consisting traces of Alorazolam has to be treated as Alprazolam. The notification is as under: "(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage from or isomers, esters, ethers and salts of these drugs, including salts of esters/ethers and isomers, wherever existence of such substance is possible and not just its pure drug content." 7. The counsel for the petitioners, in turn, relies on Section 77 of the Act, to contend that the notification cannot be held to be valid, as Section 77 of the Act prescribes, that every notification issued under clause (viiia), clause (xi) and clause (xxiiia) of Section 2 of the Act and other Sections shall be laid, as soon as may be, after it is made or issued, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made or issued, the rule or the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be. Hence, he contends that no reliance can be placed on the notification relied upon by the Public Prosecutor. 8. But the notification is issued by the Ministry of Finance and is published in the official Gazette, which means that it has passed the test of Section 77 of the Act. Hence, even if it is not brought above the table, specifying small and commercial quantities, it does not have much significance. 8. But the notification is issued by the Ministry of Finance and is published in the official Gazette, which means that it has passed the test of Section 77 of the Act. Hence, even if it is not brought above the table, specifying small and commercial quantities, it does not have much significance. The decision of the Supreme Court, in Criminal Appeal No.861 of 2011, dealt with only the operation of the notification, whether it would be prospective or retrospective, but did not deal with the validity of the notification, in terms of section 77 of the Act. The Supreme Court was dealing with a case where percentage of the substances in the mixture, were specified by the chemical analyst. The error committed by the High Court therein, in construing the quantity, was corrected by the Supreme Court. 9. The High Court of Delhi in Abdul Mateen v. Union of India W.P.(Crb). 1552 of 2010 dated 06.11.2012, while appreciating the 2009 notification, understood that the position that was sought to be altered by the said notification was that it is the entire mixture and not just the pure drug content, that has to be considered. The word mixture, which finds no definition under the Act, was attempted to be understood with the help of the definition given for 'preparation' and the Court observed that the word preparation itself has been defined in Section 2(xx) to, inter alia, mean any solution or mixture, in whatever physical state, containing one or more such narcotic or psychotropic substance and it said that it is obvious that if there is only one narcotic drug, we are referring to a mixture, then the other material must be a neutral material. But the understanding of this Court, about the preparation, as defined in Section 2(xx) of the Act, makes it difficult to accept the reasoning of the High Court of Delhi. 10. Preparation as defined in Section 2(xx) of the Act is as follows: "(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. 10. Preparation as defined in Section 2(xx) of the Act is as follows: "(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 manner in which, first part of the above provision is worded, implies that the intention was to refer to the drug or substance, which can be added in dosage form, solution or mixture. The usage of words, 'dosage form', would imply that the contents of the mixture or solution also should be in the category of excipients that would be used in dosage form. Excipients also should be of specified nature. This Court understands that in a preparation made for specific purpose the proportions of the active and inactive ingredients should be of specified quantities, otherwise it would violate the formula of the preparation. Might be for that reason, the whole quantity of the preparation, which includes a mixture, can, as a whole, be taken as the quantity of the drug or substance, which is involved in the preparation. The said meaning cannot be extended to a mixture containing unspecified material and the drug possible of being present. Hence, this Court considers, that it is necessary to, at least, analyse the seized material, to see the presence of all the material in the mixture. 11. A reading of the 2009 notification, leads to an opinion that it is not worded in the manner of making its meaning explicit. It distinguishes the mixture and solution from narcotic drugs and psychotropic substances. No meaning is conveyed by the words "any one or more narcotic drug or psychotropic substance of that particular drug" and "existence of such substance is possible and not just its pure drug content". 12. This Court is not in agreement with the way Sl.No.239 of the notification dated 19.10.2001 was understood by the Delhi High Court. The Court observed that there was no provision for dealing with the situation where the mixture was of just one narcotic dry or psychotropic substance with neutral material and that now, by a specific note in 2009 notification, the case of a narcotic dry or psychotropic substance with neutral material is included. SI.No.239 speaks about mixture of any of the drugs with or without a natural material. SI.No.239 speaks about mixture of any of the drugs with or without a natural material. The Act uses several undefined words and phrases. What do the words, natural material, used in Sl.No.239, mean? Is it the neutral material that the Delhi High Court refers to or any other, is not made clear anywhere. Even 2009 notification does not refer to any neutral material. In view of the natural material, which in all probability, would mean neutral material, being referred to in Sl.No.239, 2009 notification cannot be understood as being made, with an intent to plug in the loophole. Sl.No.239, which uses the words "with or without neutral material", would take within its fold mixture or drug with neutral material also. 13. Hence, with the inability of gathering the intent of the 2009 notification, the ratio laid down in Micheal Raj's case (1 supra), cannot be deviated from. More so, when the logic, that a person can be penalized only for being in possession of the material of which he is not permitted to be and not for being in possession of an innocuous material, is sound. 14. The notification specifies that the quantities shown in column 5 and column 6 relating to respective drugs shown in column 2 shall apply to the entire mixture of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content. This Court understands that the said notification as meaning that mixture, which is in dosage form etc. and the existence of psychotropic substance is possible. The definition of dosage form, isomers, esters, ethers and salts of drugs is not given in the Act but the definition s, f those terms in the dictionary can be borrowed and the case facts do not show that the substance i.e. Alprazolam was mixed with any of the above material. Hence, the criminal petitions are allowed. The petitioner/A 1 is directed to be enlarged on bail on condition of his executing a personal bond for Rs. 50,000/- with two sureties for a like sum each to the satisfaction of the I Additional District and Sessions Judge, Medak at Sangareddy and petitioner/ A2 is directed to be enlarged on bail on condition of his executing a personal bond for Rs. 50,000/- with two sureties for a like sum each to the satisfaction of the I Additional District and Sessions Judge, Medak at Sangareddy and petitioner/ A2 is directed to be enlarged on bail on condition of his executing a personal bond for Rs. 50.000/- with two sureties for a like sum each to the satisfaction of the Judicial Magistrate of First Class, Narsapur. As a sequel, the miscellaneous applications, if any pending, shall stand closed.