1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1121 OF 2009 IN CRIMINAL APPEAL NO.964 OF 2009 Dinesh Kumar Rai ..Applicant V/s. Intelligence Officer, NCB & anr. ..Respondents WITH CRIMINAL APPLICATION NO.1122 OF 2009 IN CRIMINAL APPEAL NO.965 OF 2009 Rajeev Kumar Rai ..Applicant V/s. Intelligence Officer, NCB & anr. ..Respondents Mr.Ayaz Khan i/b.Mr.Dilip Mishra and Nilofar Sayyed, Advocate, for the Applicants Mr.A.S.Shitole, A.P.P, for the State Mr.D.N.Salvi with Mr.Mandar Goswami, NCB UOI, Advocate for Respondent No.1 CORAM : V. M. KANADE DATE : 30TH APRIL, 2010 2 P.C. . Heard the learned Counsel for the Applicants, the learned APP and the learned Counsel for Respondent No.1. Both the accused have been convicted for the offences under Section 8(c) R/w.21(b) and 29 of the NDPS Act, 1985 and they are sentenced to suffer R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer further R.I. for 6 months. Mr. Ayaz Khan appearing on behalf of the Applicants submitted that though, the quantity of the material seized from the room in which the Applicants were found was 1 Kg, the percentage of heroine was found to be 168 grams. He submitted that the trial Court has given a finding, after relying on the Rule of the Apex Court in the matter of E. Micheal Raj versus Intelligence Officer, that the maximum quantity of the heroine was 168 gms, it was less than commercial quantity but greater than small quantity. He submitted that no Appeal has been filed against the said finding. He submitted that therefore, the provisions of Section 37 of the NDPS was not attracted to the present case. He submitted that the Applicant has undergone 4 years and 5 months of actual sentence. He further submitted 3 that the trial Court awarded maximum sentence of 10 years and even if the conviction was confirmed there is every possibility of sentence of 10 years would be reduced. He submitted that on merits the Applicants had an excellent case and he invited my attention to the grounds in the application for bail. Firstly, he submitted that both the panchas were professional panchas. There was no compliance of Section 42. Secondly, it was submitted that there was no connection of the Applicants with the premises since neither the owner nor the person, who was in possession were examined. He has also submitted that seizure of panchnama is not proved. Tampering of witness is not proved. Lastly, it was submitted that it was non-compliance of Section 50. Mr.DN.Salvi, appearing on behalf of the Respondent No.1 on the other hand, submitted that there is sufficient material on record to show the involvement of accused in the offence. He submitted that the trial Court after going through the evidence on record accepted the prosecution case. He submitted that though the Appeal had not been preferred against the finding recorded by the trial Court regarding the quantity being non-commercial quantity, the same was under consideration with the legal department 4 regarding the issue of filing an Appeal against the said finding. 2. He also submitted that a Notification has been issued by the Central Government and by the said Notification there was clarification issued by the Government in respect of the commercial quantity and small quantity. It was clarified that in the event, if the mixture was seized the entire quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in Column 2 shall apply to the entire mixture and not only to the percentage of the Narcotic Drugs and Psychotropic Substance. He submitted that since this is clarification to the earlier Notification S.O.1055(E) dated 19th October, 2001 it would be applied even to the pending cases. Subsequently, it was submitted that the said Notification would be applied retrospectively. 3. After hearing the learned Counsel for the Applicants and the learned Counsel for Respondent No.1, in my view, without going into the controversy regarding applicability of the Notification in the present case the application for bail can be decided particularly because the Applicants have already 5 undergone 4 years and 5 months sentence out of the 10 years awarded by the Special Judge. Secondly as of today, contraband which was found in the premises was non- commercial quantity and consequently, the rigours of Section 37 are not attracted to the present case. Without going into the merits of the submission made by the learned Counsel for the Applicants, in my view, there is every possibility that the said sentence of 10 years may be reduced after the matter is finally heard. Taking into consideration the fact, in my view, the Applicant deserves to be released on bail. 4. The Applicant, therefore, be released on bail on execution of P.R.Bond in the sum of Rs.25,000/- with one or two sureties in the like amount. They shall report to the concerned NCB once in a month. Hearing of the Appeal is expedited. The Applicants shall surrender their Passports, if any, and shall not leave the country without prior permission of this Court. (V.M.KANADE, J.) 6