CRM-M-37245 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-M-37245 of 2010 (O&M) Date of Decision: 29.09.2011 Darbara Singh . . .Petitioner Versus State of Punjab . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.R.K. Gupta, Advocate, for the petitioner. Mr.A.S. Rai, DAG, Punjab. ***** RAKESH KUMAR JAIN, J (ORAL) This is a petition for bail in a pending trial case registered vide FIR No.22 dated 31.1.2010 under Sections 21/61/85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and under Sections 25/54/59 of Arms Act, 1959 (for short ‘the Act’) at Police Station Division Sadar Khanna Distt. Ludhiana. Allegation against the petitioner is that he was apprehended on secret information and 414 grams powder of cocaine was recovered along with country made loaded pistol bearing 315 bore. The sample of the said powder was sent for chemical analysis and as per the report, the content of the parcel has been identified as Ketamine Hydrochloride. Learned counsel for the petitioner submits that he is in custody since 31.1.2010 and the chemical compound namely Ketamine Hydrochloride is neither narcotic nor psychotropic substance. He further submits that the petitioner has already been released on bail in respect of the offence registered under Sections 25/54/59 of the Act. He has relied upon order passed by this Court in CRM-M-20926 dated 28.9.2010 in which bail has been granted in the case of Ketamine Hydrochloride. In reply, learned counsel for the State has relied upon notification dated 21.6.2011 issued by Ministry of Finance, Government of CRM-M-37245 of 2010 (O&M) - 2 - India No. S.O. 1430(K) by which Ketamine has been inserted after serial No.238D as 238E and the small quantity has been mentioned as 10 grams and commercial quantity has been mentioned as 500 grams. Faced with this argument, learned counsel for the petitioner has submitted that the occurrence took place on 20.1.2010 and at that time Ketamine Hydrochloride was neither a narcotic nor psychotropic substance which has been inserted for the first time in the table amending the notification No.S.O.1055(E) dated 19.10.2001, therefore, it has to run prospectively and not retrospectively. In this regard he has relied upon decisions of the Supreme Court in cases titled as “Transmission Corporation of A.P. Vs. Ch. Prabhakar and others” 2004(5) SCC 551, “Anil Kumar Goel Vs. Kishan Chand Kaura” 2008(1) RCR (Criminal) 290 and “State of Madhya Pradesh Vs. Rameshwar Rathod” 1990(4) SCC 21 to contend that any amendment in criminal law which creates an offence for the first time would run prospectively and not retrospectively. After hearing learned counsel for the parties but without making any observations on the merits of the case, I am of the view that Ketamine Hydrochloride which has been recovered from the petitioner was neither narcotic nor psychotropic substance on 20.1.2010 and has been added in the table of the NDPS for the first time by way of amendment dated 21.6.2011 which would have prospective effect. In view thereof, incarceration of the petitioner in custody is not warranted. Hence, the present petition is allowed and petitioner is directed to be released on bail on his furnishing bail bonds to the satisfaction of trial Court. (RAKESH KUMAR JAIN) SEPTEMBER 29, 2011 JUDGE Vivek