1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 501 OF 2009 CRIMINAL APPLICATION NO. 501 OF 2009 CRIMINAL APPLICATION NO. 501 OF 2009 WITH WITH WITH CRIMINAL APPLICATION NO. 502 OF 2009 CRIMINAL APPLICATION NO. 502 OF 2009 CRIMINAL APPLICATION NO. 502 OF 2009 CRIMINAL APPLICATION NO. 501 OF 2009 Rajesh Rammurat Mishra (Presently in Judicial Custody). ..Applicant Accused 3 Versus State of Maharashtra (Anti Narcotic Cell, Mumbai). ..Respondent CRIMINAL APPLICATION NO. 502 OF 2009 Peerulal Nathulalji Chamari (Presently in Judicial Custody) ..Applicant/ Accused 4 Versus State of Maharashtra (Anti Narcotic Cell, Mumbai) ..Respondent Ms. Nilofer Saiyed ith Mr. Ayaz R. Khan for the applicant (in both matters). 2 Mrs. M.H.Mhatre, APP, for the State (in both matters). CORAM: V.M.KANADE,J. CORAM: V.M.KANADE,J. CORAM: V.M.KANADE,J. DATE : 23rd March,2009. DATE : 23rd March,2009. DATE : 23rd March,2009. P.C P.C P.C. 1. Heard Counsel for the applicants and the APP. 2. Both these applicants have been arrested in connection with an offence punishable under Section 8(c) read with Section 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the "N.D.P.S. Act"). The prosecution case is that the applicants were found to be in possession of 3 kgs. of heroin. The Counsel for the applicants submitted that the prosecution case is that 3 kgs. of heorin was found in their possession and the said contraband was tested at the site and was found to be heroin. The Chemical Analyser’s report shows that the said contraband was not heroin, but it was Alprazolam. It is, therefore, submitted that since it is totally a different drug which was found in the place of heroin, prima facie, the case of the prosecution, inspite of seizure of 3 kgs. of contraband, is not established and, therefore, on this ground alone the applicants were entitled to be released on bail. 3. The Counsel for the applicants submitted that 3 apart from this fact, the percentage of Alprazolam was also less than commercial quantity. It is further submitted that though the C.A. report disclosed that what was found was Alprazolam, the charge-sheet still proceeds on the basis that what was found in their possession was heroin and not Alprazolam. It is submitted that there is a serious discrepancy between the C.A. report and the allegation made by the prosecution against the applicants. 4. By an order dated 27th February,2009, this Court had directed the APP to file the affidavit of the Chemical Analyser explaining the circumstances under which the drug was found to be Alprazolam instead of heroin. Accordingly, an affidavit has been filed in which the Chemical Analyser has reiterated the stand taken by him in the C.A. report. In para 3 of the said affidavit, the following statement has been made by the C.A. :- "...I have completed the analysis and came to conclusion that the entire quantity of exhibit do not show presence of heroin but Alprazolam, caffeine and paracetamol are detected." It is further stated that the entire quantity of Alprazolam found with the applicants was about 33.9 grams which was below the commercial quantity but more than small quantity. 4 5. The Counsel on behalf of the applicants has invited my attention to the order passed by this Court in Criminal Application No.1918 of 1992 (Mr.Kamlesh Bhikalal Kapasi s. The Sr.Inspector of Police) wherein on similar issue this Court (Coram S.M.Daud, J.) granted bail to the applicant in the said case. My attention is also invited to the order passed by this Court (Coram: M.F.Saldanha,J.) in Criminal Application No.3717 of 1992 (Calore Antonio vs. The State of Maharashtra) wherein also on the same ground bail as granted. In my view, this is a serious discrepancy in the prosecution case, more particularly when the sample which was sent to the C.A. clearly showed that the sample which was tested was heroin. However, the C.A. emphatically and specifically has asserted in the C.A. report as well as in his affidavit in reply that the drug found was psychotropic substance viz. Alprazolam and not psychotropic drug. In view of this serious discrepancy in the prosecution case, in my view, the applicants deserve to be released on bail. Alternately, even though Alprazolam is a psychotropic substance, the percentage of the said substance is below the commercial quantity and slightly more than small quantity and, therefore, the provisions of Section 37 of the N.D.P.S. Act are not attracted. Even otherwise, in this case, viewed from any angle, the applicants deserve to be released on bail. Hence, the following order :- 5 Both the Applicants be released on bail in the sum of Rs.10,000/- each with one or two sureties in the like amount. 6. It needs to be noted here that in more than one matter, I have noticed that the report of the Chemical Analyser is not proper or is incorrect. The Secretary, Home Department, Government of Maharasshtra, is directed to personally look into the matter and find out whether proper care is taken while sending the drug for chemical analysis and after it is sent for chemical analysis, it is properly stored and thereafter proper chemical analysis is made as per the procedure which is laid down for that purpose. A copy of this Order be sent to the Home Secretary forthwith. (V.M.KANADE,J (V.M.KANADE,J (V.M.KANADE,J.)