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2022 DIGILAW 617 (KER)

Safar, S/o. Ashraf v. State Of Kerala

2022-07-22

VIJU ABRAHAM

body2022
ORDER : These are applications for regular bail. 2. Petitioner in B.A.No.4357 of 2022 is the 2nd accused in Crime No.963 of 2021 of Nedumbassery Police Station registered alleging commission of offences punishable under Sections 8(c), 22(c), 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS Act”). Petitioner in B.A.No.4347 of 2022 is the 3rd accused in the above crime. 3. The prosecution case, in brief, is that on 21.11.2021 at 15.30 hours police has seized 158 grams of MDMA and 4.6 grams of 9 MDMA pills in a polythene bag kept hidden beneath the steering wheel of a vehicle bearing registration No.KL-47-F-4675 from Kariyadu junction. It is alleged that petitioners were also travelling in the above vehicle and thus committed the abovesaid offences. 4. Petitioner in B.A.No.4357 of 2022 submits that he is innocent of the charges levelled against him. He has no connection with the alleged seized contrabands. It is also submitted that the petitioner was travelling as a gratuitous passenger in the car and that he has no connection with the abovesaid car. The petitioner has no conscious possession of any contrabands and no contrabands were seized by the police from him. 5. Petitioner in B.A.No.4347 of 2022 submitted that in the chemical analysis it is found that the allegedly seized article is methamphetamine hydrochloride and it is not MDMA. It is further submitted that the methamphetamine hydrochloride is not included in the Schedule of NDPS Act and hence the offence will not lie against the petitioner. It is also submitted that the petitioner has no connection with the alleged seizure and that the finding of the lower court while rejecting the request for bail of the petitioners holding that whether methamphetamine hydrochloride is included in the Schedule of NDPS Act or not can be considered only at the time of trial, is per se illegal. 6. The accused are in judicial custody from 21.11.2021. Since commercial quantity was involved, the bail applications filed by the accused were dismissed. 7. Learned counsel for the petitioners mainly contended on two aspects that even though the initial case of the prosecution was that contraband seized was MDMA, now as per the chemical analysis report the contraband is methamphetamine hydrochloride. The further contention is that the alleged contraband is not included in the Schedule of NDPS Act. 8. 7. Learned counsel for the petitioners mainly contended on two aspects that even though the initial case of the prosecution was that contraband seized was MDMA, now as per the chemical analysis report the contraband is methamphetamine hydrochloride. The further contention is that the alleged contraband is not included in the Schedule of NDPS Act. 8. It is the specific case of the prosecution that all the accused were found in possession of the alleged contraband drug in a maruthi swift car. It has also come out in evidence that all the accused have conspired to purchase contraband from Bangalore. The account details of the accused clearly show monetary transactions in connection with the alleged crime. 9. The learned counsel for the petitioners relied on Annexure 3 judgment of this Court in B.A No.35 of 2020 and also the judgment in Mari Appa v. State of M.P., 1990 KHC 1379 to contend for the position that if the procedure laid down under the Act is not followed, the petitioners are entitled for bail. Petitioners would contend that they have no conscious possession of the alleged contraband and no contraband was seized from the person of the accused. 10. Let me first consider the contention of the petitioner in B.A.No.4357 of 2022 that even though the petitioner was travelling in the above vehicle, he has no conscious possession of contraband and no contraband is seized from his possession. It is admitted fact that the petitioner is arrested on the spot along with the contraband article which is concealed inside the car. The concept of possession has been considered by the Apex Court in various judgments. The Apex Court in Mohan Lal v. State of Rajasthan, 2015 KHC 4305, paragraph 16 of the said judgment reads as follows: “16. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of S.18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation. presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. As the factual matrix would exposit, the accused appellant was in possession of the prohibited or contraband substance which was an offence when the NDPS Act came into force Hence, he remained in possession of the prohibited substance and as such offence under S.18 of the NDPS Act is made out. The possessory right would continue unless there is something to show that he had been divested of it. On the contrary, as we find, he led to discovery of the substance which was within his special knowledge, and, therefore, there can be no scintilla of doubt that he was in possession of the contraband article when the NDPS Act came into force To clarify the situation, we may give an example. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly on the date of recovery. he is in possession of the contraband article and possession itself is an offence. A person had stored 100 bags of opium prior to the NDPS Act coming into force and after coming into force, the recovery of the possessed article takes place. Certainly on the date of recovery. he is in possession of the contraband article and possession itself is an offence. In such a situation, the accused appellant cannot take the plea that he had committed an offence under S 9 of the Opium Act and not under S. 18 of the NDPS Act.” The Apex Court in Baldev Singh v. State of Haryana, 2015 KHC 4738, held in paragraphs 12 and 13 as follows; “12 Testimony of Ram Singh -PW-1 and evidence on record amply establishes physical possession of the contraband by the appellant. The appellant being the driver of the vehicle by all probabilities must have been aware of the contents of the bags transported in the trolley attached to the tractor Once the physical possession of the contraband by the accused has been proved, S.35 of the NDPS Act comes into play and the burden shifts on the appellant accused to prove that he was not in conscious possession of the contraband. S.35 of the NDPS Act reads as under: 35. Presumption of culpable mental state. (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. -In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation to sub-section (1) of S.35 expanding the meaning of 'culpable mental state' provides that 'culpable mental state' includes intention, knowledge of a fact and believing or reason to believe a fact. Explanation to sub-section (1) of S.35 expanding the meaning of 'culpable mental state' provides that 'culpable mental state' includes intention, knowledge of a fact and believing or reason to believe a fact. Sub-section (2) of S,35 provides that for the purpose of S.35, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of the probability. Once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession Burden of proof cast on the accused under S.35 of the NDPS Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence If the circumstances appearing in the prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of the required intention, the burden cast on him under S.35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence. 13. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, AIR 2000 SC 821 , this Court has clearly held that where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of S.35 of NDPS Act the burden of proof is then upon him to prove that he had no knowledge that the bags contained such a substance This Court then went further on to explain as to the standard of proof that such an accused is expected to discharge and the modes vide which he can discharge the said burden. In paras (21) and (22) of the said judgment, this Court held as under: "21. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. In paras (21) and (22) of the said judgment, this Court held as under: "21. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated a in sub-section (2) as "beyond a reasonable doubt" If the court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal However, if the court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt undispelled. Even so, it is for the accused to dispel any doubt in that regard. 22. The burden of proof cast on the accused under S.35 can be discharged through different modes. One is that he can rely on the materials available in the prosecution evidence. Next is, in addition to that, he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In otherwords, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the appellant could not have had the knowledge or the required intention, the burden cast on him under S 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence." In Dharampal v. State of Punjab, 2010 KHC 4698, paragraph 9 reads as follows: “9. We do not find any substance in this submission of the learned counsel Appellant, Dharmpal Singh was found driving the car whereas appellant, Major Singh was travelling with him and from the dicky of the car 65 Kilograms of opium was recovered The vehicle driven by the appellant, Dharampal Singh and occupied by the appellant, Major Singh is not a public transport vehicle. It is trite that to bring the offence within the mischief of S 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the accused plea is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in context of all the statutes Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of S. 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge. S.54 of the Act raises presumption from possession of illicit articles. It reads as follows : "54. Presumption from possession of illicit articles In trials under this Act, it may be presumed unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of - (a) any narcotic drug or psychotropic substance or controlled substance, (b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated, (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance, or (d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily." From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and S.35 of the Act gives statutory recognition: to culpable mental state. It includes knowledge of fact The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to account for satisfactorily the possession of opium. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in the case of Madan Lal and Another v. State of H.P., 2003 (7) SCC 465, wherein it has been held as follows : "26 Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge S 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of S.54 where also presumption is available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused appellants that the possession was not conscious in the logical background of S.35 and S.54 of the Act" The Apex Court in Union of India Through Narcotics Control Bureau, Lucknow v. Md. Nawas Khan, 2021 KHC 6503, has held that the absence of possession of contraband on person of the accused does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. This Court in Jose and another v. State of Kerala, 2021 KHC 727 , in paragraphs 10 and 12 held as follows: “10. Therefore, their contention that they were not found in conscious possession of the contraband have to be established by them with reference to the factual backdrop, at trial. This Court in Jose and another v. State of Kerala, 2021 KHC 727 , in paragraphs 10 and 12 held as follows: “10. Therefore, their contention that they were not found in conscious possession of the contraband have to be established by them with reference to the factual backdrop, at trial. (See Dharampal Singh State of Punjab, 2010 KHC 4698) In Kulwinder Singh and another v. State of Punjab, 2015 KHC 3116 the Apex Court observed that if a person is found in possession of narcotic drugs while he was travelling in a truck / vehicle in which the drugs were transported and he is found in control of the articles, he is presumed to be in conscious possession and the burden is upon him to prove that he was not in conscious possession, at the time of trial. Therefore, the contention of the petitioners that they were not in 'conscious possession' and had no knowledge about the sacks and its contents have to be established by them at the time of trial of the case. Now the investigation of the case is only at the initial stage. It is also significant to note that prima facie the 1st petitioner was found siting in the front seat of the car in which the 2nd petitioner was the driver and the vehicle was not a public vehicle (Also See Baldev Singh v. State of Haryana), 2015 KHC 4738. In short, the records would prima facie indicate that the ganja seized was found in their conscious possession and they transported it along with the other accused together from Tamil Nadu after collecting it from the 6th accused. xxx xxx xxx 12. Here the prosecution case itself is that the drugs were transported together by the accused Nos. 1 to 5 in a car and lorry with the help and assistance of the 6th accused after procuring it from him Prima facie the records would reveal that both the vehicles were coming together with narcotic items and commercial quantity of drugs were seized from the conscious possession of the petitioners and the accused 3 to 5, and thus they were arrested with the contraband and the case was registered Prima facie, the materials on record indicate that they were in conscious possession of the contraband and the search and seizure will not render the case of the prosecution unreliable. It is also significant to note that the NDPS Act provides a reverse burden of proof, contrary to the normal rule of criminal Jurisprudence.” So from the declaration of law as stated above, the petitioners who were travelling in a car with the contraband and having been arrested on the spot cannot contend that the contraband was not in conscious possession and that when physical possession is proved, the burden shifts on the accused to prove that they were not in conscious possession of the contraband and in the present case the petitioners have not prima facie established such a contention and therefore the said contention is only to be rejected while considering the present bail application. 11. Another contention raised is that the particular narcotic drug which was seized is methamphetamine hydrochloride and that drug does not find a place in the Schedule to the Act and therefore the contraband cannot be said to be a psychotropic substance. To the said contention, the learned Public Prosecutor submitted that the said drug will come under the table appended to Section 2(xxiii) as serial No.239. It is profitable to extract Section 2(xxiii) of the NDPS Act which defines “psychotropic substance” and the same reads as follows: “(xxiii) “psychotropic substance” means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule” Serial No.239 in the Schedule referred to in Section 2(xxiii) of the NDPS Act along with Notes (1) and (4) reads as follows: Sl.No . Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Other nonproprietary name Chemical name Small quantity (in gm.) Commercial Quantity (in gm./kg.) 1 2 3 4 5 6 xx xx xx xx xx xx 239 Any mixture or preparation that of with or without a neutral material, of any of the above drugs Note: (1) The small quantity and the commercial quantity given against the respective drugs listed above apply to isomers, within specific chemical designation, the esters, ethers and salts of these drugs, including salts of esters, ethers and isomers; whenever existence of such substance is possible. xxx xxx xxx Note: (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 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.” Relying on the same it was contended by the learned Public Prosecutor that what is stated therein is that “any mixture or preparation that of with or without a neutral material, of any of the above drugs”, meaning thereby any content of substance added to a mixture would form a psychotropic or narcotic substance and that methamphetamine hydrochloride is nothing but methamphetamine mixed with salt and therefore it comes within the purview of serial No.239 of the Schedule. Learned Public Prosecutor relied on an unreported judgment of the Madras High Court in Sadiq Basha v. State represented by the Intelligence Officer, Narcotic Control Bureau, Chennai, i.e. Crl. O.P. No. 8070 of 2016 in which an identical situation was considered by the Madras High Court. Paragraphs 17 and 18 of the said judgment read as follows: “17. The submission of the learned Senior counsel for the petitioner is three fold namely (i) the contraband allegedly seized from the petitioner viz., Methamphetamine Hydrochloride is not included in the schedule to Section 2 (xxiii) of the Act (ii) the chemical analysis report is silent about the quantitative assessment made with reference to the neutral material contained in the drug allegedly seized from the petitioner and (iii) the petitioner is arrayed as A-2, he was not in possession of the contraband at the time of seizure and that he is undergoing incarceration for a period of more than a year. 18. The main contention of the learned Senior counsel for the petitioner is that the list of psychotropic substances appended in the Schedule to Section 2 (xxiii) of the Act does not contain the name of the drug allegedly seized from the petitioner and what is indicated in serial No.90 thereof is only Metamfetamine Racemate and it is not indicated in the chemical analysis report in this case. In order to repudiate this submission, the learned Special Public Prosecutor has taken me to the table appended to Section 2 (xxiii) of the Act, in serial No.239 it is stated that "Any mixture or preparation that of with or without a neutral material, of any of the above drugs". By relying on this note in Serial No.239, it is submitted that any content or substance added to a mixture would form a psychotropic or narcotic substance. The above submissions made by the learned Senior counsel for the petitioner and the learned Special Public Prosecutor are matters to be decided in the course of trial and in this petition, which is filed by the petitioner for bail, it has no significance. For granting or rejecting bail, this Court is required to arrive at a conclusion that there is no material made available by the prosecution to show that there are reasonable grounds exist for believing that the accused is guilty of such offence and that he is not likely to commit any offence while on bail. In this case, there are materials made available on record by the prosecution in the form of confession statement of the petitioner, recovery mahazar, chemical analysis report etc., but they are disputed by the petitioner. While so, it is for the trial court to decide the correctness or otherwise of the material evidence produced by the petitioner and it is not for this Court to consider those evidence for grant of bail.” The notification dated 18.11.2009 adding Note (4) to the notification dated 19.10.2001 was a subject matter of challenge before the Apex Court in Hira Singh and another v. Union of India and another, 2020 (2) KHC 551 , paragraphs 8.2, 8.5 and 10 of the said judgment read as follows: “8.2 Therefore, considering the statement of objects and reasons and the preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from sub-clause (viia) and (xxiiia) of S.2 of NDPS Act emphasis is on Narcotic and Drug or Psychotropic Substance (S.21, S.22, S.23, S 24, S.27 and S.43). Right from sub-clause (viia) and (xxiiia) of S.2 of NDPS Act emphasis is on Narcotic and Drug or Psychotropic Substance (S.21, S.22, S.23, S 24, S.27 and S.43). Even in the table attached to the Notification dated 19/10/2001, column no. 2 is with respect to name of Narcotic Drug and Psychotropic Substance and column nos. 5 and 6 are with respect to "small quantity and commercial quantity" Note 2 of the Notification dated 19/10/2001 specifically provides that quantity shown against the respective drugs listed in the table also apply to the preparations of the drug and the preparations of substances of note 1. As per Note 1. the small quantity and commercial quantity given against the respective drugs listed in the table apply to isomers, whenever existence of such substance is possible. Therefore, for the determination of "small quantity or the commercial quantity" with respect to Narcotic Drugs and Psychotropic Substance mentioned in column no 2 the quantity mentioned in the clauses 5 and 6 are required to be taken into consideration. However, in the case of mixture of the narcotic drugs / psychotropic drugs mentioned in column no 2 and any mixture or preparation that of with or without the neutral material of any of the drugs mentioned in table, lesser of the small quantity between the quantities given against the respective Narcotic Drugs or Psychotropic Substances forming part of mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. As per example, mixture of 100 gm is seized and the mixture is consisting of two different Narcotic Drugs and Psychotropic Substance with neutral material, one drug is heroin and another is methadone lesser of commercial quantity between the quantities given against the aforesaid two respective Narcotic Drugs and Psychotropic Substance is required to be considered. For the purpose of determination of the "small quantity or commercial quantity, in case of entry 239 the entire weight of the mixture/ drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. For the purpose of determination of the "small quantity or commercial quantity, in case of entry 239 the entire weight of the mixture/ drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in the case of E Micheal Raj (Supra) is accepted, in that case, it would be adding something to the relevant provisions of the statute which is not there and/or it was never intended by the Legislature. xxx xxx xxx 8.5.The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral substance (s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute “small quantity or commercial quantity”, cannot be accepted. xxx xxx xxx 10. xxx xxx xxx 10. In view of the above and for the reasons stated above, Reference is answered as under: (I) The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or 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 and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law; (II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances; (III) S.21 of the NDPS Act is not stand alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18/11/2009 and Notification S.O 1055(E) dated 19/10/2001; (IV) Challenge to Notification dated 18/11/2009 adding "Note 4" to the Notification dated 19/10/2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act Consequently, writ petitions and Civil Appeal No.5218/2017 challenging the aforesaid notification stand dismissed.'' So, in view of the judgment of the Madras High Court in Sadiq Basha's case (supra) and the judgment of the Supreme Court in Hira Singh's case (supra), the contentions raised by the petitioners that the alleged contraband is not mentioned in the Schedule and therefore, cannot be treated as a narcotic substance is only to be rejected. 12. Admittedly, the quantity of contraband seized is a commercial quantity and therefore the rigor of Section 37 of the NDPS Act will come into play and therefore the enlargement of the accused on bail can only be when the twin conditions mentioned in Section 37 are satisfied. The Apex Court in State of Kerala etc. v. Rajesh etc., 2020 (1) KHC 557 , has held in paragraphs 20 and 21 as follows: “20. The Apex Court in State of Kerala etc. v. Rajesh etc., 2020 (1) KHC 557 , has held in paragraphs 20 and 21 as follows: “20. The scheme of S.37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under S.439 of the CrPC, but is also subject to the limitation placed by S.37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of S 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.'' On an anxious consideration of the contentions raised, I find that the petitioners are unable to establish that the twin conditions in Section 37 of the NDPS Act are satisfied. In view of the above, the above bail applications are accordingly dismissed. It is made clear that these prima facie observations are made for the limited purpose of deciding this bail application and the above opinion expressed shall not be regarded as opinion on merits during the trial.