1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.316/2009 IN CRIMINAL APPEAL NO.246/2009 Chandran Krishnan APPLICANT VS Union of India & Ors. RESPONDENTS Ms. Sartaj and Taraq Sayyed for applicant Mr.Francis Saldanha ,Spl.P.P. U.O.I. Ms.S.V.Gajare,APP for State CORAM: MRS.MRIDULA BHATKAR,J. DATE :4th SEPTEMBER,2009 P.C. . In the beginning it is necessary to clarify certain facts regarding hearing of this appeal . This appeal is already admitted . This is an application for bail moved on 25/2/2009 . This matter has appeared before me on 13/4/2009 and was partly argued . However, as the arguments were not completed and the sitting was changed the specific written order was passed as ‘not to be treated as part heard ‘ and it was adjourned to 16/4/2009. Thereafter the matter was adjourned to 18/4/2009 ,30/4/2009 ,and 2.5.2009 . It appears from the order passed by Mr.Justice A.R.Joshi that the parties have made submissions before the Bench that this matter was heard 2 by me extensively and they would be moving before Hon’ble The Chief Justice for taking the matter before me. However, till today the Hon’ble The Chief Justice has not passed any order and again due to the change in assignment this matter has come before this Court by way of regular assignment. The learned counsel appearing for both the parties have submitted that they have not read and were not aware of the order of matter being de-part heard and ,therefore, they have made such submissions before the Bench of Mr.Justice A.R.Joshi . This is the appeal against conviction under section 8(c) r/w 21(c) ,r/w 23,28 and 29 of the N.D.P.S.Act dated 19/1/2009 and 21/1/2009 . The learned counsel appearing for the appellant/accused has submitted that he was Malaytian national and arrested on 26/3/2005 . He has been behind bar since then. He has also submitted that the appellant/accused is 69 years old and is sentenced to suffer R.I.for 10 years out of which he has undergone 4 and ½ years sentence. The law point which is mainly agitated in the appeal is the percentage of heroine which was found during the seizure. 3.08 Kg. contraband powder was found in possession of the appellant/accused which he was possessing for the 3 commercial use for which he has been convicted . The learned Special Prosecutor has conceded that the prosecution has not tendered any evidence to show the exact percentage of heroine. How much heroine was mixed up or whether the entire content of powder was the heroine is not brought on record. As per the amended N.D.P.S.Act dt 2.10.2001 the Central Government has decided if 250 gms.quantity of heroine is to be considered for the commercial purpose and less than 250 gms.is for non commercial use and such offender cannot be brought under section 21(c) but could be prosecuted u/s 21(b) of the N.D.P.S.Act which is less serious offence. On this point reliance is placed on the land mark ruling of E.Micheal Raj Vs.Intelligence Officer,Narcotic Control Bureau ,reported in (2008) 5 Supreme Court Cases ,161 in which it is held that - “ It is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity.” In the present case though the 3.08 total contraband was found percentage of heroine ,whether 250 gms.or not, is not proved by the prosecution. 4 The learned Special P.P.has submitted that the accused was paid huge amount for transportation of this contraband and he has confessed about the sale. In support of his submissions he relied on Ravindran @ John Vs.Supdt.of Customs reported in AIR (2007) 3 Supreme Court Cases (Cri) 189 . In this case issue of use of confessional statement was mainly dealt with and percentage of contraband was not decided and the law laid down in the case of E.Micheal Raj (supra) is exactly on that point. Hence the relying on the said ruling and unreported ruling of our High Court (Omprakash Deepak Kanojia Vs.The State of Maharashtra & Anr.) in Criminal Application no.16 of 2008 in Criminal Appeal no.19/2008 by Mr.Justice A.M.Khanwilkar I am inclined to release the accused on bail. Hence the order. 1] The accused be released on bail of Rs.2 lacs with one surety of Rs.2 lacs or two sureties of Rs.1 lac each. 2] The accused to report D.R.A.on 1st Monday of every month. Bail application stands disposed of accordingly. (MRS.MRIDULA BHATKAR,J.)