JUDGMENT
Badar Durrez Ahmed, J.
1. The learned counsel for the petitioner submitted that the petitioner is said to have been apprehended while transporting 100 litres of Acetic Anhydride, a controlled substance within the meaning of Section 9A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”). This, according to the case of the prosecution, happened on 24.03.2004 near Ramlila Maidan, Delhi. The case of the prosecution is that on the basis of a secret information, a raiding party was constituted as they had been informed that the petitioner would be transporting Acetic Anhydride in a truck bearing registration No. H.R37-7013 from Meerut to Delhi. The said truck is said to have been stopped by the Officers of the Narcotic Branch of Delhi Police and five drums containing 100 liters of Acetic Anhydride (in total) were said to have been recovered from the truck. The petitioner was a passenger in the said truck and he was apprehended on the spot.
2. The learned counsel for the petitioner submits that the driver of the truck, one Riazuddin, was cited as a witness on behalf of the prosecution and he gave his deposition as PW2 and he has turned hostile inasmuch as he categorically stated in his examination-in-chief that “nothing was recovered or seized from my vehicle”. According to the learned counsel for the petitioner, in view of such a clear and categorical statement, the entire recovery itself stands falsified.
3. The learned counsel for the State submitted that Acetic Anhydride is a controlled substance but it is used in the manufacture of Heroin and is not normally used by persons who are not involved in the manufacture and trade of drugs. He, however, submitted that Acetic Anhydride is also capable of illegitimate uses such as manufacturing of Heroin and that is why restrictions on the manufacture, sale, transport etc of this substance has been imposed in terms of the notification under Section 9A of the NPS Act.
4. In this particular case, the learned counsel for the State submitted that the petitioner was supplying other Chemicals to different laboratories and since he had fallen upon hard times, he had started engaging in the supply of Acetic Anhydride to several persons for illegitimate uses. However, he stated that there is no direct evidence available on record as yet to establish this allegation. He referred to a decision of the Supreme Court in case of Union of India v. Kuldeep Singh reported in (2003) AD (SC) 432 to indicate the seriousness of the offence involving recoveries of controlled substances like Acetic Anhydride. In that case, after conviction of the accused, the sentence, instead of ten years, was reduced to six years by Punjab and Haryana High Court. However, the Supreme Court had reinstated the sentence of ten years, looking at the seriousness of the nature of the offences. That, however, is a case of sentence after conviction. In the present case, we are only concerned with the question of grant of bail. In this case, the learned counsel for the petitioner submitted in rejoinder that Section 37 of the NDPS Act is not attracted as no commercial quantity of any narcotic drug or a Psychotropic substance involved. Therefore, this application would have to be treated as a normal application under Section 439 of CrPC without having to consider the rigours of Section 37 of the NDPS Act. The learned counsel for the petitioner submitted that the most important fact is that the recovery of these 100 litres of Acetic Anhydride is stated to have been made in the presence of the driver of the truck i.e., Riazuddin (PW2) who has turned hostile and has categorically denied the recovery of these 100 litres of Acetic Anhydride. The learned counsel for the petitioner also submitted that the truck did not belong to the petitioner and it had been hired not only by the petitioner but by other persons also for transporting other legitimate articles. He further submitted that, in any event, these aronly allegations. According to him, he has not hired the truck.
5. After having heard the learned counsel for the parties and after having examined the facts and circumstances of the case, I am inclined to agree with the statements made by the learned counsel for the petitioner that a case for bail has been made out.
The petitioner has already been in custody for about one year and there appears to be no likelihood of his fleeing from justice. The only independent witness has already turned hostile and the factum of recovery is already in doubt. In these circumstances, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of the trial court.
The application stands disposed of.
