IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 2681 of 2010()
1. SUDHEER @ BLACK SUDHEER,S/O.MUSTHAFA,
... Petitioner
Vs
1. STATE OF KERALA,REP.BY P.PROSECUTOR,
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :20/07/2010
O R D E R
K. HEMA, J.
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B.A. No. 2681 of 2010
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Dated this 20th day of July, 2010.
ORDER
Petition for bail.
2. The alleged offence is under Section 22(c) of the
Narcotic Drugs and Psychotropic substances Act (for short
‘NDPS Act‘). Petitioner was allegedly found in possession of 32
ampules of Lupigesic, which is the trade name of
Buprenorphine. The crime was detected on 16.3.2010 and the
petitioner was arrested from the spot.
3. Learned counsel for petitioner submitted that petitioner
is in custody for the past 126 days. Going by the decision in
Micheal Raj v. Intelligence Officer (2008 (2 ) KLT 36), unless the
quantitative analysis is made, the quantity of Bupernorphine in
the article cannot be assessed. Hence, it cannot be said that
large commercial quantity is involved in this case. Therefore, it
has to be deemed that quantity involved is lesser than the
commercial quantity and petitioner is entitled for bail under
Section 167(2) of Cr.P.C. since he is in custody for the past
more than 60 days, it is submitted. It is also argued that
[B.A.No.2681/2010] 2
petitioner has not committed offence, going by the provision
contained in under Rule 66 of the NDPS Rules because, as
per the said provision, 100 dosage of the drug can be kept in
possession of a person even without prescription.
4. This petition is strongly opposed. Learned Public
Prosecutor submitted that petitioner is involved in other cases
for offences under NDPS Act. If the petitioner is released on
bail, it is likely that he will abscond. It is also submitted that in
the light of the notification dated 18th November, 2009, the
quantity involved in this case is commercial quantity. As per
the notification, the quantities shown in column 5 and 6 of the
Table relating to the respective drugs shown in column 2 shall
apply to the entire mixture of any solution or any one or
more narcotic drugs or psychotropic substances of that
particular drug.
5. Going by the above notification date dated
18.11.2009, the total quantity of Bupernorphine found in
possession of petitioner is 64 ml. which will come to about 60
grams. Hence, quantity involved is commercial quantity and
[B.A.No.2681/2010] 3
petitioner is not entitled for bail on default, it is argued. It is
also submitted that in the light of the notification, it cannot be
said that Micheal Raj’s case still holds field. According learned
public Prosecutor, it is in the light of Micheal Raj’s case that
the notification was introduced. Learned Public Prosecutor
also submitted that petitioner has also no case that he was
keeping contraband article for personal use. Unless there is an
admission that it was kept in possession for personal use,
Rule 67 will not apply.
6. On hearing both sides, I am satisfied that petitioner is
involved in various other cases of similar nature. The
offence under Section 22(c) of NDPS Act involves commercial
quantity and, as per Section 37 of NDPS Act, no person
accused of an offence punishable for offences involving
commercial quantity shall be released on bail, in cases where
Public prosecutor opposes the application, uncles the court is
satisfied that there are reasonable grounds for believing that
petitioner is not guilty of such offence and that he is not likely
to commit any offence while on bail. Petitioner is not able to
[B.A.No.2681/2010] 4
substantiate the twin conditions in 37(1)(b)(ii) of NDPS Act.
At any rate, considering the antecedents, it is likely that
petitioner may repeat the offence. In such circumstances, bail
cannot be granted.
Petition is dismissed.
K. HEMA, JUDGE.
Krs.