ORDER
J.B. Koshy, J.
1. Doubting the correctness of the decision of the Division Bench in Shaji v. Kerala State in view of the two earlier judgments of the Apex Court, this Bail Application was referred to the Division Bench. Petitioner is the 2nd accused in Crime No. 18/2004 of Railway Police Station, Shornur. The allegation against the petitioner is that he along with another accused was found to be in possession of 3200 ampules of Norphine (Buprenorphine Hydrochloride) and 60 Ampules Ophenorgon. Petitioner was arrested on 25-6-2005. According to the counsel for the petitioner, he was in custody for about 110 days. Since quantity seized was a ‘small quantity’ he is entitled to statutory bail as charge sheet is not yet to be framed. Contention of the petitioner is that each ampule contains 0.3 gms. of Buprenorphine and hence what was seized is a small quantity below 1 gm. The Sessions Judge while rejecting the bail application found that since each ampule contains 2 ml. of Morphine, it is considered as commercial quantity coming under Section 22 (c) and 18(c) read with Section 27A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). His bail application was rejected by the Sessions court holding that he was in possession of commercial quantity of Morphine and there is no circumstances or reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail as stated in Section 37. Section 37 of the Act reads as follows:
“37. Offences to be cognizable and nonbailable:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) —
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section
24 or Section 27 A and also for offences involving commercial quantity shall be released on bail or on his own bond unless–(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (i) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”
2. C.D. file shows that even though, initially, the crime was registered under Section 22(a) of the Act, it was amended later under Sections 22(b) and Section 18(c) of the Act read with Section 27A of the Drags and Cosmetics Act, 1940. We quote below Section 22 of the Act:
“22. Punishment for contravention in relation to psychotropic substance’s:– Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substances shall be punishable–
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both;
(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”
The quantity of the substances seized is 3200 ampules, containing 2 ml. each and the contents of Buprenorphine in 1 ml. is 0.3 grams as such its weight is above 1 gram and below 20 gms.
3. ‘Small quantity’ is defined in Section 2 (xxiiia) of the Act as follows:
“(xxiiia) ‘small quantity’, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.”
‘Commercial quantity’ is defined in Section 2 (viia) of the Act as follows:
“(viia) ‘commercial quantity’, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;”
As per the notification S.O.No. l055(E) dated 19th October, 2001, item 169, small quantity of Buprenorphine is below one gram and commercial quantity is above 20 grams.
Therefore this is an intermediary quantity between small quantity and commercial quantity. That is why charge was amended to Section 22(b) instead of Section 22(c). The contention that the petitioner was holding a small quantity and he is entitled to the statutory bail after sixty days of court order cannot be accepted.
4. In Ouseph v. State of Kerala, (2004) 4 SCC 446 the Apex court was considering what is ‘small quantity’. In that case, 110 ampules of Buprenorphine were seized from the accused for personal consumption. The small quantity was one gram as per Central Government Notification dated 23-7-1996. In para 8 it is stated as follows:
” The question to be considered by us is whether the psychotropic substance was in a small quantity and if so, whether it was intended for personal consumption. The words “small quantity” have been specified by the Central Government by the notification dated 23-7-1996. Learned Counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each ampule contained only 2 ml. and each ml. Contains only 3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than l/10th of the limit of small quantity specified under the notification”.
Therefore, one ml. contains 0.3 gms. of Buprenorphine. Since each ampule contains 2 ml. Buprenorphine, each ampule contains 0.6 gms. of psychotropic substance. The quantity in the above case was much below small quantity. In Sajan Abraham v. State of Kerala, 2004 (2) KLT 122 (SC), it was held that appellant was in possession of Buprenorphine preparation for his personal use and the appellant is entitled to the benefit of Rule 56 of the NDPS Rules which permits the user to keep in his possession for his personal medicinal use the psychotropic substance upto 100 dosage quantity at a time. In the reference order, bail granted in B.A.No. 6823 of 2004 was also mentioned. (Hussain v. State of Kerala). In that case, the accused was found to be in possession of only 25 ampules of Buprenorphine. It is a very ‘small quantity’.
5. In Shaji v. Kerala State, , a Division Bench of this Court held that when the psychotropic substance is a preparation in the form of solution, the entire solution being a psychotropic substance, is by itself a psychotropic substance as defined in Section 2(xxiii) of the Act. Section 2(xxiii) of the Act is as follows:
“(xxiii) ‘psychotropic substance’ means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance nor material included in the list of psychotropic substances specified in the Schedule;”
There is no dispute to the proposition that preparation or solution of psychotropic substance also can be treated as psychotropic substance. Court also noticed that under Notification S.R.O.No. 1055 issued in terms of Clause vii (a) and sub-section (xiiia) of Section 2 of the Act stipulates what is ‘small quantity’ and what is ‘commercial quantity’ and referred to Clause 169 wherein small quantity is below 1 gm. and commercial quantity is 20 gms. and above. But, the Court was of the opinion that going by the definition of ‘psychotropic substance”, entire weight of the preparation should be taken into account and hence even possession of 54 ampules was held to be not a small quantity. But, item 239 of the notification was not pointed out before the Division Bench. Item 239 of the above notification is as follows:
“Any mixture or preparation that of with or without a natural material, of any of the above drugs.” Under the column “small quantity” is mentioned as follows:
“Lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of mixture”
Under the “commercial quantity” what is mentioned is as follows:
“Lesser of the commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture”.
Since item 239 in the notification was not considered by the Division Bench while considering Shaji’s case (supra), the above decision cannot be relied on by the prosecution. The court was considering the question whether offence should be tried by the Special Court and Magistrate’s Court and for that purpose it was considered whether the substance seized is small quantity or not. We are not referring the matter to the Full Bench as the matter is made clear by the Apex Court in Ouseph Alias Thankachan v. State of Kerala, (2004) 4 SCC 446. But, the above decision decided on 6-12-2001 was reported only in 2004 after Shaji’s ease was decided and it was also not pointed out to the Division Bench/Even though entire solution can be considered as psychotropic substance, to consider whether it is commercial quantity or small quantity, item 239 of the notification issued under Section 2(viia) and 2 (xxiiia) gives the guideline.
6. In this case, considering the preparation seized as a whole is not commercial quantity or small quantity under item 239 read with item 169 and offence, if proved, will not come as under Section 22 (c) or 22(a) but only under Section 22 (b). We also note that the first accused who was found in possession of the ampules seized were released on bail by the Special Court by order dated 13th October 2004. The petitioner was arrested on 25-6-2095 and he was already in prison for 110 days. Having considered the materials placed before us, the petitioner shall be released on bail on the following conditions:
i. The petitioner shall execute a bond for Rs. 25,0007- with two solvent sureties each for the like amount to the satisfaction of the Sub Court, Palakkad.
ii. The petitioner shall not interfere with the investigation, attempt to influence the witnesses or threaten them or indulge in any activities which would be detrimental to the interest of the prosecution.
iii. The petitioner shall report before the investigating officer as and when called for.
The C.D. file is returned to the Government Pleader.