MP 1 BA1617_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1617 OF 2011 Noor Mohammed Shaikh ... Applicant Versus Narcotic Control Bureau and another ... Respondents Mr. Ayaz Khan i/b. Mr. Rajendra Bidkar, Advocate for the Applicant. Mr. D.N. Salvi, Advocate for the Respondent No.1. Smt. P.P. Shinde, APP for the Respondent No.2 State. CORAM : J. H. BHATIA, J. DATE : 18TH NOVEMBER 2011 P. C. : The applicant seeks to be released on bail in NDPS Special Case No.3 of 2011 pending before the Special Court for NDPS Act on the basis of the charge-sheet filed by the Narcotic Control Bureau (NCB). 2. Prosecution case, in brief, is that the officers of NCB had got information that one Fiat Palio car bearing registration No. MH-02-MA-1950 would be coming near a Mall at Vashi. As per the information, vehicle came and search was taken. From one blue zipper hand bag, 3 kg. Ephedrine, which is a controlled substance, was recovered. The accused was driving the vehicle and he was in possession of the said bag. After taking sample and completing other formalities, the property was seized. The statement of the applicant was recorded and then he was taken into custody. It is alleged that he had admitted in his statement that he had supplied 13 kg of Ephedrine to a different party, which was previously seized by the NCB. About that seizure, already a case was registered by NCB. After admission of the accused under Section 67 of the NDPS Act, he was also implicated as accused in that case. 3. The learned Counsel for the applicant contends that the rigors of Section 37 of the NDPS Act are not applicable to the seizure of the controlled MP 2 BA1617_11 substance which is defined under Section 9-A. In fact, he contends that Ephedrine is not a controlled substance. However, the learned PP pointed out that it is declared to be a controlled substance by the Central Government. The learned PP also made a statement that as per the Central Forensic Science Laboratory, a sample of the substance seized from the accused was found to be Ephedrine, which is a controlled substance. 4. Section 25-A provides that, if any person contravenes an order made under Section 9-A, he shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees. However, no minimum sentence is prescribed. Admittedly, Section 37 of the NDPS Act puts restrictions in respect of offences punishable under Sections 19, 24 and 27-A and also for the offences involving commercial quantity of narcotic drugs or psychotropic substance. The controlled substance is neither a narcotic drug nor a psychotropic substance, and therefore, no commercial quantity or otherwise is provided for the controlled substance. In view of this, the restrictions imposed by Section 37 in respect of grant of bail are not applicable to the offences punishable under Section 25-A in respect of controlled substance. The application for bail in such cases has to be dealt with as per the provisions of the Code of Criminal Procedure, that is, either under Section 437 or Section 439 of the Code of Criminal Procedure. 5. Under Section 437, Judicial Magistrate can grant bail but bail cannot be granted to a person who appears to have been guilty of the offences punishable with death or imprisonment for life. It means in the offences which are not punishable with death or imprisonment for life, bail may be granted by the Magistrate. It also provides that if the offence is cognizable and the accused has been previously convicted of the offences punishable with death, imprisonment for life or imprisonment for seven years or more, or he has been MP 3 BA1617_11 previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years, bail may be refused to him. In fact, these restrictions are also not applicable if the application is being dealt with by the Sessions Court or the High Court under Section 439. The offence under Section 25-A in respect of controlled substance is punishable with imprisonment which may extend to ten years only. In such cases, bail may be refused if the accused was previously convicted of the offence punishable with death, imprisonment for life or imprisonment for seven years or he has been convicted on two or more occasions in a non-cognizable offence punishable with imprisonment for more than three years. There is no material nor there is any allegation of the prosecution that the present applicant was previously convicted and sentenced for any offence. The second case, in which he is said to be involved, was registered before Ephedrine was allegedly recovered from the accused on 30.11.2010 but he was implicated as accused in that case afterwards on the basis of his alleged admission under Section 67 of the NDPS Act. In that case, the accused from whose custody the Ephedrine was recovered, was granted bail. 6. The learned Counsel for the applicant pointed out that in several cases, this Court as well as the other High Courts have granted bail in case of controlled substance even though the quantity was huge. He pointed out that in Criminal Application No.446 of 2001, bail was granted by this Court where the quantity of the controlled substance, that is, Acetic Anhydrade was 1390 kgs. In another case, two applications for bail were granted, where the quantity of Acetic Anhydrade was 1105 kgs. This Court had also granted bail in Rafael Palafox Garcia Vs. Union of India, MANU/MH/0890/2008 where the controlled substance, that is, Psudo Ephedrine was 290 kgs. In three other criminal applications including criminal application No.165 of 2011 (Faiyaz Ahmed Rasool Shaikh Vs. Union of India), this Court had granted bail, where MP 4 BA1617_11 the quantity of Ephedrine was 93 kgs. In the present case, only 3 kg, Ephedrine was allegedly recovered from the present applicant. 7. Taking into consideration the legal provisions and the quantity of the controlled substance allegedly recovered from the applicant, I do not see any valid reason to refuse bail to the present applicant. 8. Therefore, the applicant be released on his executing P.R. of Rs.50,000/- with one or two solvent sureties to make up the amount on condition that he shall attend the office of Narcotic Control Bureau on 1st and 3rd Monday of every month till disposal of the case and shall not tamper with the prosecution evidence. (J. H. BHATIA, J)