IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION ( BAIL ) NO. 118 OF 2009 GANESH NAIK ... Applicant Versus STATE REPRESENTED BY OFFICER-IN-CHARGE ANTI NARCOTIC CELL POLICE STATION PANAJI ... Respondent Shri J. P. D'Souza, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for the Respondent. Coram:- N. A. BRITTO, J. Date:- 31st March, 2009 P.C.:- The Applicant herein is accused in Crime No.14/2008 registered against him under Sections 20(b)(ii)(A), 21(b) and 22(b) and (c) of N.D.P.S. Act, 1985 and who has been denied bail by the learned N.D.P.S. Court, Mapusa vide Order dated 5-12-2008 and as such has approached this Court, for bail. The allegation against the Applicant/Accused is that on 19-11-2008 at about 23.30 hours the accused was found in possession of 53 gms. of charas, 15 gms. of Cocaine and 10 gms of MDMA/Ecstasy. The controversy is regarding the finding of 10 gms. of MDMA/Ecstasy which according to the learned Special Judge of N.D.P.S. Court, Mapusa is commercial quantity and therefore the learned Special Judge has invoked the provisions of Section 37 of the said Act and has denied bail to the accused. The Special Judge after taking note that the total weight of MDMA/Ecstasy could be considered as 10 gms. has proceeded to observe that the actual weight could even be more since the weighing machines in the laboratory are more accurate and sensitive than the weighing machines used by the raiding party. The learned Special Judge has also noted that there was nothing mentioned in the application as to how the Applicant could be considered as not guilty of the said offence. If the weighing machines in the laboratory are more accurate or more sensitive, the reverse of the observation of the learned Special Judge could also be true. For the present, we have to proceed on the allegation that the accused was found, inter alia, with 10 gms. of MDMA/Ecstasy. There is no dispute that in terms of item no.134 of the notification dated 19-10-2001, 0.5 has been considered as small quantity and 10 gms. has been considered as commercial quantity. Shri J. P. D'Souza, learned Counsel appearing on behalf of the accused referring to various definitions, particularly to Section 2(vii-a) submits that in order to attract the provision of the said Act the quantity had to be greater than the quantity specified by the said Central Government by notification in the Official gazette and that in this case it is not shown by the prosecution at present that the quantity found with the accused was greater than 10 gms. In support of his submission, Shri D'Souza, learned Counsel has placed reliance on a Full Bench Judgment of Himachal Pradesh High Court in the case of Ratto v. State of H.P.(2003 Drugs Cases(Narcotics) 124) wherein with reference to Cannabis/Charas of 1 kg. it was held that 1 kg. could not be considered to be commercial quantity for the purpose of Section (vii-a) of the said Act. In my view, there is substance in this submission made on behalf of the accused. Commercial quantity has been defined by clause (vii-a) of Section 2 to mean in relation to narcotic drugs and psychotropic substances any quantity greater than the quantity specified by the Central Government in the Official Gazette. Since the prosecution at this stage has not shown that the seized MDMA/Ecstasy was more than 10 gms., in my view, the rigours of Section (vii-a) could not have been invoked by the prosecution to deny bail to the accused. Learned Counsel on behalf of the accused has also relied on an unreported Judgment of this Court dated 6-5-2005 as well as dated 8-6-2006 in Criminal Miscellaneous Application No.70 of 2005 and Criminal Miscellaneous Application(Bail) No.227 of 2006, respectively wherein the accused who were found in possession of drugs of less than commercial quantities were admitted to bail. Considering the said Judgments and further considering that Section 37 of the Act were not applicable to the case of the present accused, in my opinion, the accused deserves to be admitted to bail and shall so be released upon execution of a bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned Special Judge, N.D.P.S. Court, Mapusa and with a further condition that whilst on bail the accused shall not commit similar offences. Application is allowed on the above terms. Hamdust allowed. N. A. BRITTO, J. RD.