Smt.Sayara Abdul Hussain v. The State of Maharashtra

The learned counsel for the applicant relied upon the judgment of the Delhi High Court in the case Ansar Ahmed v. State (Govt. of NCT of Delhi), of Ansar Ahmed v. State (Govt. of NCT of Delhi) Ansar Ahmed v. State (Govt. of NCT of Delhi) 2005 (4) Crimes 598 (Del.) to contend that quantity of neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug of the psychotropic substance (as the case may be) is relevant for determining whether it would constitute "small quantity" or "commercial quantity". The Delhi High Court relied upon the judgment of the Apex Court in the case of Ouseph v. Ouseph v. Ouseph v. State of Kerala, State of Kerala, (2004) 4 SCC 446; wherein the total State of Kerala, quantity which was assessed was not taken into account but the prohibited contents therein were taken into consideration to reach to the conclusion as to whether the prohibited substance was having commercial or a small quantity. Relying on these two judgments, learned counsel for the applicant submits that section 27 of the NDPS Act would not be applicable. He further contends that the applicant is in jail since 24th October, 2006 i.e. more than six months. - 4 -

Per contra, learned A.P.P., appearing for the State, strongly opposed for grant of bail. He relied upon the order of learned single Judge dated 22nd August, 2005 passed in Criminal Application No.4185/2005 to contend that entire substance is required to be taken into account for determination whether it is "commercial quantity" or "small quantity".

Without going to the rival contentions of the issue raised, at this stage, since the trial is pending and considering the weight of the submissions advanced by learned counsel for the applicant and the fact that the applicant is already behind bar for more than six months, I am inclined to grant bail in favour of the applicant subject to the following conditions: (a) The applicant, arrested in connection with C.R.No.319/2006 registered with Anti Narcotic Cell, C.B. C.I.D., Mumbai shall be enlarged on bail in the sum of Rs.1,00,000/- with one or two local sureties to make up the said amount. (b) The applicant shall report to the Anti - 5 - Narcotic Cell, C.B. C.I.D., Mumbai twice a week, i.e. on every Monday and Friday between

Application stands disposed of accordingly. JUDGE JUDGE JUDGE