1 S/1 S.B. CRIMINAL MISC. BAIL APPLICATION NO. 4568/2009. Raju @ Nathi Vs. The State of Rajasthan Date of Order :: 10th December 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. R.S. Gill, for the petitioner. Mr. Mahipal Bishnoi, Public Prosecutor. ... The petitioner, an accused of the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act in FIR No. 359/2009, Police Station Sangaria on the allegations of recovery of 17 grams of smack powder from his possession; and said to be in custody since 04.07.2009, has filed this application for bail under Section 439 Cr.P.C. on 05.09.2009. In this bail application earlier, the learned Public Prosecutor was granted time to procure the case diary. Thereafter, on 23.10.2009, when the learned counsel for the petitioner made the submissions with reference to the decision of the Hon'ble Delhi High Court in the case of Ansar Ahmed & Ors. Vs. State (Govt. of NCT of Delhi) : 123 (2005) Delhi Law Times 563 and that of the Hon'ble Supreme Court in the case of E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau : AIR 2008 SC 1720, the learned Public Prosecutor prayed for time to procure the FSL report concerning the present case and at request, the matter was adjourned to 03.11.2009. 2 On 03.11.2009, the learned Public Prosecutor further prayed for time to procure the FSL report and the matter was adjourned to 16.11.2009. On 16.11.2009, when the learned Public Prosecutor prayed for yet further time to procure the FSL report, this Court did not appreciate the delay on the part of the concerned authorities in supplying the requisite report and, while granting last opportunity, consideration of the bail application was deferred to 07.12.2009 but with the observations that upon failure of the prosecution to procure and place the FSL report by the next date, the matter would be considered while drawing an adverse inference against the prosecution regarding such report. Thereafter, on 07.12.2009, the learned Public Prosecutor placed on record the report said to have been sent by the State Forensic Science Laboratory, Rajasthan in relation to the articles involved in the present case wherein the result of examination has been stated as under:- “On microchemical analysis :- The sample contained in the packet marked A gave positive tests for the presence of diacetylmorphine (Heroin).” The learned counsel for the petitioner has strenuously contended that the said report cannot be assigned any value or worth for the purpose of the case at hands particularly 3 when the only result suggested therein is that the substance was answering to the test of diacetylmorphine but without stating anything on the chemical analysis and the percentage of the relevant compound. The learned counsel, apart from relying on the decision of the Hon'ble Supreme Court in E. Micheal Raj (supra), has also referred to an order dated 03.01.2008 as passed by the Hon'ble Supreme Court in a Petition for Special Leave (Criminal) No. 4771/2007 (Biswajeet Chandra @ Kanu Vs. State of West Bengal) and submitted that it is the net content of the questioned substance that remains relevant and not the mere weight of the article or commodity recovered; and in the present case, when the FSL report is totally silent on the relevant aspects, it cannot be assumed that the entire of the 17 grams of the substance allegedly recovered from the petitioner was diacetylmorphine only. The learned counsel has also referred to a decision of this Court in the case of Smt. Nazma Vs. State of Rajasthan : 2009(1) Cr.L.R. (Raj.) 598 to submit that when the report simply recorded positive test for morphine but not about the rate of purity, this Court held that the recovered substance cannot be termed as opium derivative and the accused cannot be convicted under Section 8/21 of the Act. The learned counsel submitted that in any case, the quantity allegedly recovered from the petitioner had been 17 grams that remains below commercial quantity and in the totality of the circumstances, no useful purpose would be served with further 4 detention of the petitioner. The learned Public Prosecutor has opposed this bail application particularly on the submissions that the commodity recovered in the present case had been smack referable to diacetylmorphine and weighing about 17 grams that had been above small quantity and the petitioner does not deserve indulgence. As the matter is being considered on the bail plea of the petitioner, this Court would not be making any comments having bearing on the merits of the case but the cryptic report as said to have been made by the Forensic Science Laboratory has left the things too many to be desired. The laboratory concerned was aware of the fact that the examination was being required in relation to a case under Section 8/21 NDPS Act and yet chose to give a report merely about presence of diacetylmorphine in the sample but without stating the percentage of the contents. The decisions of the Hon'ble Supreme Court and of this Court being direct and clear on the relevance of such percentage of contents, it is rather surprising to notice that the report has not been made with exactitude and necessary particulars. It appears that the agencies dealing with the prosecution have chosen to proceed without having regard to the requirements of the law as spelt out by the statute and as declared by the decisions of the Court. 5 In the given circumstances, there appears no reason to deprive the petitioner of the liberty. The petitioner is said to be not involved in any other criminal case and no other circumstance has been suggested that could operate against granting of bail to the petitioner. In the overall circumstances, it does appear just and proper to enlarge the petitioner on bail but on comparatively higher bail bonds and subject to the condition that if the petitioner would be found involved in any other criminal case, the prosecution shall be entitled to seek cancellation of bail being granted in this case. The stipulation aforesaid shall be distinctly mentioned in the bail bonds to be furnished by the petitioner. Subject to the requirements aforesaid, this bail application under Section 439 Cr.P.C. is allowed and it is directed that the petitioner Raju @ Nathi S/o Munshi Ram be released on bail in relation to FIR No. 359/2009, Police Station Sangaria provided he executes the requisite personal bond in the sum of Rs. 1,00,000/- (Rupees One Lac) with two sound and solvent sureties in the sum of Rs. 50,000/- (Rupees Fifty Thousand) each to the satisfaction of learned Trial Court for his appearance before that court on each and every date of hearing and whenever and wherever called upon to do so till the completion of trial. (DINESH MAHESHWARI), J. //Mohan//