JUDGMENT [ENTITY], J.
1. In this case, there is an alleged recovery of 2 kg of contraband from co-accused [ENTITY] and a further recovery of 1.5 kg of contraband from one room at B-3A, New Govind Pura, Chander Nagar. This bail application concerns the second alleged recovery. It is the case of the prosecution that the said room from where the 1.5 kg of contraband was recovered, was in the occupancy of the present petitioner [ENTITY], who was residing in that room as a tenant. The learned Counsel for the petitioner submitted that when the alleged recovery was made from an open almirah in the said room, the present petitioner was not present. He further submits that the recovery was allegedly made from the said room and at that point of time, even as per the prosecution case, the room was unlocked. He further submits that the recovery was made pursuant to a purported disclosure statement made by co-accused [ENTITY] and till that point of time [ENTITY] (the present petitioner) was not in the picture at all. This is one of the grounds raised by the learned Counsel for the petitioner for seeking bail on his behalf. He submits that the circumstances throw a cloud over the alleged recovery said to have been made from the said room which is alleged to have been in occupation of the present petitioner. According to him, the connection between the recovery and the present petitioner is tenuous.
2. The learned Counsel for the petitioner further submitted that the recovery of heroin, which is alleged to have been made, is also suspect because of another circumstance. He pointed out that initially when the alleged recovery was made a sample was taken and was sent to the laboratory for testing. The first report is dated 27.05.2002 and it indicated that the sample contained 54.9% diacetylmorphine. Thereafter, when the matter was before the Trial Court, an application was moved for retesting of the sample. The court acceded to that request and passed the following order on 06.05.2006:
Fresh samples weighing five gram each giving marking as C-1 and F-1 has been taken out from the case property allegedly recovered from [ENTITY] and [ENTITY] (as per the prosecution case ) of this case after de sealing the same in this Court in the presence of the counsel for the accused and Ld. Addl. PP for the State and the same are packed in the small polythene envelopes which have further been put in a white envelope. The same be duly sealed and be sent to Director, FSL, Rohini, Delhi for its examination through SHO of PS concerned with a copy of this order with a request to the Director FSL to examine the sample being sent, on priority basis and sent the report in this respect to this Court before 22.09.2006, the date fixed in the matter.
3. Pursuant to the said order, the samples C-1 & F-1 were sent to the Forensic Science Laboratory for re-examination. We are not concerned with the sample C-1 inasmuch as it pertains to the recovery allegedly made from co-accused [ENTITY]. In this application we are concerned with the sample labelled F-1 which is said to be taken from the case property pertaining to the recovery sought to be connected to the present petitioner. The result of examination as reported by the Forensic Science Laboratory on 03.06.2006 is indicated below:
RESULT OF EXAMINATION
(i) On Thin Layer Chromatography and Gas Chromatography examination, exhibits 'C-1' & 'F-1' were found to contain Acetylcodine and Monoacetylmorphine.
(ii) On Gas Chromatography examination, exhibits 'C-1' & 'F-1' were also found to contain Diacetylmorphine & Alprazolam.
Exhibit 'C-1' 6.9% 0.99 % respectively.
Exhibit 'F-1' 19.4% & 1.9% respectively.
4. It is clear from the above report that the content of diacetylmorphine has been shown to be 19.4%. Of course, there is an additional content of alprazolam of 1.9% but we are not concerned with that for the time being.
5. The learned Counsel for the petitioner submitted that when the sample was first tested, it disclosed a content of 54.9% of diacetylmorphine and when the sample from the case property was re-examined, it disclosed a content of 19.4% of diacetylmorphine. According to him, this casts serious doubts on the integrity of the case property as well as the recovery itself. Therefore, he submits that the ingredients of [SECTION] of the [ACT] (hereinafter referred to as the [ACT]) are satisfied as indicated by Supreme Court in [PRECEDENT]. He, therefore, contended that the petitioner was entitled to be released on bail. He also placed reliance on decision of this Court in the case of [PRECEDENT] wherein, under similar circumstances, as there was a discrepancy in the content of diacetylmorphine between two tests done at the laboratory, the petitioner therein was granted the benefit of bail despite the provisions of [SECTION] of the [ACT]. In that case, this Court observed as under:
5. I have considered the arguments advanced by the learned Counsel for the petitioner as well as the learned Counsel for the State. Insofar as the applicability of [SECTION] of the [ACT] is concerned, without going into the question of percentage of the Heroin found in the substance, it may be assumed that the same is applicable in this case. However, the fact that [SECTION] of the [ACT] applies to a particular case does not mean that the accused in such a case would not be entitled to bail per se. What is necessary for the court examining the question of grant of bail where [SECTION] applies is that the court should be satisfied having regard to the material available on record that there are sufficient grounds that the petitioner may not be convicted. If the probabilities are that the petitioner may not be convicted, then the court can grant bail subject to the further condition being satisfied that the petitioner is not likely to commit any offence while on bail. However, if the court is satisfied looking at the probabilities of the case that the petitioner is likely to be convicted, then the question of grant of bail would not arise. This is what has been held by the Supreme Court in the case of Ranjitsing Brahmajeetsing [ENTITY] v. State of Maharashtra and Anr. II (2005) CCR 92 (SC) : 2005 AIR SCW 2215 while considering the provisions of [SECTION] of the [ACT]. The provisions of [SECTION] of the latter act are in pari materia with the provisions of [SECTION] of the [ACT]. Para 49 of the said Supreme Court decision reads as under:
49.We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under [SECTION] of the [ACT] may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organized crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite means rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of [ACT]. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.
6. In the backdrop of the foregoing principles, I find that the differences in the test results of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial. However, on the basis of the materials brought on record, there is every likelihood that the petitioner may not be convicted in this case. It is further to be examined as to whether there is any likelihood of the petitioner committing any offence while on bail. In this regard, the Supreme Court in the aforesaid decision, held that the satisfaction of the court as regards the likelihood of not committing any offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. It further held (in paragraph 55 of the said report) that since it is difficult to predict the future conduct of the accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence. The present petitioner has no criminal antecedents and nothing has been indicated to show that the petitioner has a propensity to commit any offence under the [ACT].
6. The learned Counsel for the petitioner submitted that the petitioner has no criminal antecedents and therefore, this would be clear indication that there is no likelihood of the petitioner committing such an offence if released on bail. Therefore, the twin conditions of reasonable doubts that the petitioner may not be convicted and that if released on bail he is not likely to commit any such offence, are satisfied and the petitioner is entitled to bail.
7. Mr. [ENTITY], who appears on behalf of the State submitted that although there are differences in the two test reports, this variation has occurred, according to him, because of passage of time. He says that there is no evidence on record to show that there has been any tampering with the case property or the samples sent to the laboratory because both the reports of the laboratory indicate that the seals were found to be intact. He further submitted that even if the percentage of the second report is taken into account, it discloses that the recovered substance contained 19.4% of diacetylmorphine and if the ratio of [PRECEDENT] is applied the recovered substance by weight of actual content of diacetylmorphine would come to roughly 281 gms which is in excess of 250 gms and therefore would be a recovery of a commercial amount. He submitted therefore, that [SECTION] of the [ACT] would clearly be applicable.
8. He also submitted that in view of the decision of this Court in the case of [PRECEDENT], the percentage content of diacetylmorphine being 19.4%, the same can be regarded as a high content and therefore apparently the contraband recovered was from somebody who was involved in the sale and or trafficking of narcotic drugs inasmuch as higher percentages reveal greater proximity to the source of supply. He also submitted that four out of 18 witnesses have been examined and the trial would not take a very long time to conclude and therefore, the application for bail ought to be rejected.
9. I have considered the arguments advanced by the counsel for the parties and have given considerable thought to the same. There is no doubt in what Mr. [ENTITY] says that [SECTION] of the [ACT] would be applicable even in view of the [PRECEDENT]'s case (supra). There s also no doubt that the content of 19.4% of diacetylmorphine would indicate that the substance was close to the source of supply in view of the ratio in [PRECEDENT]'s case (supra). However, I am of the view that there is reasonable doubt as to the recovery having been made and as to the connection between the alleged recovery and the present petitioner. The circumstances which cast doubts are similar to those as appearing in [PRECEDENT]'s case (supra) where the samples, on re-testing, indicated great variation. On a prima facie basis, I may be willing to agree with Mr. [ENTITY], who says that due to passage of time the percentage content of diacetylmorphine may vary. However, the variation in this case is not a minor variation but a substantial one. The first test found the content of diacetylmorpbhine to be 54.9% whereas the second test, pursuant to the orders of the court, indicated a content of 19.4%. According to me, prima facie, this is a tremendous variation which cannot be explained away by mere passage of time. Of course, it is a matter of trial to establish whether this is so or not. However, at this stage there are reasonable doubts that the recovery was not made in the manner it is alleged to have been made. In these circumstances, keeping in view the ratio of the Supreme Court decision in Ranjitsing Brahmajeetsing [ENTITY] (supra) referred to in [PRECEDENT]'s case (supra), I feel that the petitioner has been able to make out a case for the grant of bail. As regards the likelihood of committing such an offence while on bail, it is an admitted position that the petitioner has no criminal antecedents and as in the case of [PRECEDENT] (supra), nothing has been indicated to show that the petitioner has a propensity to commit any offence under the [ACT]. In these special circumstances of this case, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the concerned court. The petitioner shall report at PS Narcotic Branch, Shakar Pur, Delhi every two months.
This bail application stands disposed of.
dusty