IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 Bail Appl..No. 3028 of 2010() ----------------------------- (CRIME NO. 141/2010 OF MATTANCHERRY POLICE STATION, ERNAKULAM DISTRICT) MP.551/2010 of J.M.F.C.-II, KOCHI .................... : PETITIONER/IST ACCUSED ------------------------------------------ ANEESH, AGED 27 YEARS, S/O.NASAR, CC 5/438, PANACHIKA PARAMBIL, PUTHIYA ROAD, MATTANCHERRY, KOCHI-2. BY ADV. SRI.ASHIK K.MOHAMMED ALI RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MATTANCHERRY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. M.S. BREEZ. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------------------------------- B.A. No. 3028 of 2010 --------------------------------------------------- Dated this 2nd day of June, 2010. ORDER Petition for bail. 2. The alleged offence is under Section 22(b) of of the Narcotic Drugs and Psychotropic Substances Act. According to prosecution, petitioner (A1) was found in possession of 100 ampules of Lupigesic and he was arrested from the spot. Along with him, 2nd accused was also found and from his possession 25 ampules of Lupigesic were seized. 3. Learned counsel for petitioner submitted that petitioner is in custody for the past 112 days. The quantity possessed by petitioner cannot be said to be commercial quantity, in the light of the decision of the Supreme Court in Michael Raj v. Intelligence Officer, Narcotic Control Bureau (2008) 5 SCC 161) wherein it is held that if the contraband article is mixture of a substance with one or more neutral substance, the quantity of neutral substance is not to be taken into consideration while determining the small quantity or commercial quantity of such substance. It is only the [B.A.No.3028/2010] 2 actual content by weight of narcotic drug which is relevant to decide whether it would constitute small quantity or commercial quantity. 4. It is also submitted by petitioner's counsel that though a notification was issued touching the quantity, it cannot be taken into account, since it was not in force at the relevant time. The incident in this case happened on 10.2.2010 but the notification did not come into force on the date on which it was issued viz. 18.11.2009. According to learned counsel for petitioner, notification was placed before the Parliament only on 5.3.2003 and as per Section 77, the notification could not have come into force on 18.11.2009. 5. This petition is strongly opposed. Learned Public Prosecutor submitted that, in the light of the notification dated 18.11.2009 , the quantity involved was commercial quantity. Each ampule contained 2ml. and hence 200 ml. was the drug which was found in the possession of petitioner. 20 gm. is a commercial quantity. It is also submitted that until the notification is set side by a competent court there is no bar in relying upon the same. It is also pointed out that similar arguments were advanced in other bail applications and this Court before two learned Judges of this [B.A.No.3028/2010] 3 Court dismissed the bail applications, rejecting these arguments. 6. On hearing both sides, I find that prima facie petitioner was allegedly found in possession of commercial quantity of narcotic drug, in the light of the notification. The notification is not questioned so far as illegal. Considering the serious nature of the offence committed, I am satisfied that it is not fit to grant bail to petitioner at this stage. Petition is dismissed. K. HEMA, JUDGE. Krs.