1 SNS IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.1631 OF 2011 IN CUSTOMS NDPS SESSIONS CASE NO.18 OF 2011 Union of India Through Inspector of Customs (Prev.) Narcotic Cell 4th floor, ICE House, 41-A, Sassoon Road, Pune 411 001 ..Applicant. v/s. 1 Ambalal Srilalji Ahir age 28 years Village Alod, Taluka: Dungla, Dist. Chitodgarh, Rajasthan 2 Kailash Chandra Mallara Age 35 years, At near Patwar Bhavan, Tal: Dungla, Dist. Chitodgarh, Rajasthan 3 The State of Maharashtra ..Respondents. Mr. F.E.Saldanha, SPP for the Applicant/Union of India. Mr. Anil Lalla , adv. for the respondent nos.1 and 2. Mr. Y.M.Nakhawa, APP for the State. CORAM : J.H.BHATIA, J. DATE : 12th December, 2011 2 ORAL JUDGMENT: 1 The Union of India has preferred this application for cancellation of bail granted to the respondent nos.1 and 2, who are the original accused by the learned Special Judge (NDPS Act), Pune in Customs NDPS Sessions Case No.18 of 2011. 2 Prosecution case in brief, is that, one Satish Kulkarni, Inspector, Customs (Preventive) Narcotic Cell at Pune received intelligence on 19.11.2010 at about 13.30 hrs. that two persons namely, Ambalal Srilalji Ahir and Kailashchandra Mallara would be coming opposite Modern Cafe, Shivajinagar, Pune in a Maruti Alto at about 4 p.m. on the same day with about 15 kg of opium. After completing the other formalities, officers of the Narcotic Cell took position near the relevant spot. At about 4 p.m. one Maruti Alto car bearing registration no. RJ-27-CB-3899 arrived and stopped in front of Modern Cafe. The officers of the Narcotics Cell surrounded the car and introduced themselves to the occupants of the car and enquired about the identity of the occupants of the car. Applicant No.2 Kailash was on the driver seat while the applicant no.1 Ambalal was on the seat by the side of driver. From below the seat of the vehicle, one jute bag consisting of a plastic bag was found. The said plastic bag contained black coloured substance. With the help of field testing kit, small quantity of that substance was tested and it answered positive for opium. The contents of the plastic 3 bag weighed 14.500 kg. Three representative samples of 25 gm each were drawn and put into three separate plastic pouches. They were heat sealed with the seal of “Narcotics Cell, Pune Customs” and other formalities were completed. The said samples were S-I, S-II and S-III. Sample S-II was referred to the Deputy Chief Chemist, Central Revenue Control Laboratory, New Delhi. Another sample marked S-I was referred to the Deputy Chief Chemist , New Customs House, Ballard Estate,Mumbai. Reports from both the laboratories revealed that the samples were opium. As per the report from the Central Revenue Control Laboratory, New Delhi, the sample of opium contained 10.6 % of morphine while as per the report from Chemical Analyser, Mumbai, the morphine was 9.88%. After investigation, case was filed and it is pending before the Special Court, NDPS, Pune. 3 Both the accused persons filed bail application before the learned Special Judge, Pune. The learned Special Judge granted bail to both of them, as per the order dated 7.7.2011, holding that the commercial quantity of opium is 2.5 kg but in the present case, as the morphine contents of the two samples were found 10.6% and 9.88% respectively on an average morphine contents of total quantity would be 1537 gm i.e. 1.537 kg and as it is less than commercial quantity of 2.5 kg. He observed that stringent provisions of Section 37 of the NDPS Act in respect of grant of bail are not applicable. That order is sought to be cancelled by the Union of 4 India by filing this application. It is contended by the learned Spl. P.P. that the learned Special Judge had misled and misdirected himself in granting bail. He contended that commercial quantity of opium is 2.5 kg as per the Notification while commercial quantity for morphine is only 250 gm. He argued that total quantity of morphine could not be equated with the total quantity of opium and that whole of the substance recovered from the accused persons was opium. As it was 14.5 kg , it was much above commercial quantity as per the Notification issued by the Government of India and, therefore, the stringent provisions of Section 37 in respect of grant of bail would be applicable. He urged that there was no material to show that the accused persons had not committed the offence or would not commit offence in future, therefore, the bail could not be granted to them. It is contended that the order is completely illegal and against the law. 4 The learned counsel for the accused/respondent vehemently contended that two C.A. Reports are conflicting in respect of contents of the morphine. C.A. Reports do not indicate whether the opium substance found in the present case would fall within the definition of opium under Section 2 (xv) (a) or (b). He contended that it was necessary for Chemical Analyser to specify under which particular provision the narcotic drug falls and as it is not shown specifically, the matter may be considered at the time of trial and, therefore, no fault can be found with the grant of bail. The 5 learned counsel also argued that merely because of the presence of morphine, it may not be concluded that the substance was opium and not something else. 5 In view of the arguments and the points raised by the learned counsel for the accused on the last date, I had directed prosecution to produce complete data of the analysis, at-least from one of the laboratories and accordingly, a copy of the data from the office of the Assistant Chemical Analyser, New Customs House, Mumbai has been produced. Some of the observations in the said data of the analysis would be relevant and material. They are as follows: Observations: 1 Sample is in the form of dark brown thick sticky paste having characteristic strong odour of opium. 3 Mayer’s test for Alkaloids- Positive 4 Marquis test for opium alkaloids – Positive 5 Test for Meconic Acid - Positive 7 “All the five major opium alkaloids viz. Morphine, Codeine, Thebaine, Papaverine and Narcotine were found present in the sample.” 11 Morphine strength is 9.88 % Finally the report shows that “The sample is in the form of dark brown thick sticky mass. It answers tests for opium and is covered under NDPS Act, 1985.” 6 The learned counsel for the accused relied upon copy of extract from the Merck Index to show what opium means. As per Entry No. 6 6854 in that book, opium consists of about 20 alkaloids, constituting about 25% of the opium; meconic acid, some lactic and sulfuric acids, sugar, resinous and waxy-like substances; 12-25% water. Morphine is the most important alkaloid and occurs to the extent of 10-16%. Other important alkaloid are noscapine 4-8%, codeine 0.8-2.5%, Papaverine 0.5-2.5%, thebaine 0.5-2%. In the sample in the present case, besides morphine, most of the important alkaloids and acids were found in the sample and on the basis of that, Chemical Analyser reported that the sample is opium as defined in the NDPS Act. 7 As stated earlier, as per the report from the laboratory at New Delhi, Morphine contents were 10.6% while as per the report from Mumbai laboratory contents were 9.88%. It appears that before the learned Special Judge, it was argued on behalf of the accused that on the basis of average of the morphine contents as per these two reports in the total quantity of 14.5 kg, morphine contents would be 1537 gm or 1.537 kg and this being less than commercial quantity of 2.5 kg, accused are entitled to bail. This argument was accepted by the learned Special Judge. 8 To appreciate the arguments advanced by the learned counsel for the rival parties, it would be useful to refer to certain definitions given in section 2 of the NDPS Act. 7 “2(xiv) “narcotic drug” means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs; (xv) “opium” means - (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine; (xvi) “opium derivative” means - (a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government, whether in powder form or granulated or otherwise or mixed with neutral materials; (b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked; (c) phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts; (d) diacetylmorphine, that is the alkaloid also known as dia-morphine or heroin and its salts; and (e) all preparations containing more than 0.2 8 per cent of morphine or containing any diacetylmorphine; “2(xviia) “commercial quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette;” 2(xxiiia) “small quantity”, in relation to narcotic drugs and psychotropic substances, mans any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette;” 9 The Ministry of Finance, Department of Revenue, in the Central Government had issued Notification dated 19.10.2001 prescribing small quantity and commercial quantity for different categories of narcotic drugs and psychotropic substances in the form of the table. Relevant entries for this case are given below: Sr. No. Name of Narcotic Drug and Psychotropic Substance (international non- proprietary name (INN) Other non- proprietary name Chemical Name Small Qty. (in gm) Commercial Quantity (in gm./kg.) 28. Codeine 3-0 methylmorphine 10 1 kg. 56 Heroin Diacetylmorhine 5 250 gm. 9 77 Morphine Morphine 5 250 gm. 92 Opium And any preparation containing opium 25 2.5 kg. 93. Opium Derivatives [other than diacetyl morphine (heroin), morphine and those listed herein.] 5 250 gm. 120 Thebaine 3,6-Dimethoxy-4,5- epoxy-9a-methyl morphine-6, 8-diene 2 100 gm. 10 From this, it would appear that in respect of heroin, morphine, and opium derivatives, the small quantity means 5 gm or less than 5 gm while the commercial quantity is more than 250 gm. In respect of thebaine the small quantity is 2 gm and the commercial quantity is 100 gm. In respect of codeine the small quantity is 10 gm and commercial quantity is 1 kg and in respect of opium and any preparation containing opium, small quantity is 25 gm and commercial quantity is 2.5 kg. 11 The learned counsel for the accused vehemently contended that as the C.A. Reports had not specifically stated the prosecution is not clear whether substance would fall within the definition of opium as per the clause (a) or clause (b) of Section 2(xv). In the present case, the data of the analysis of the sample clearly shows that on every possible test, the sample was found to be opium because all the important alkaloids and acids in different quantities were found in the sample and, therefore, it could be definitely stated that even though Chemical Analyser had not specified 10 whether it falls under Section 2(xv)(a) or (b), it may fall under 2(xv)(a). Even if one is to consider from angle of 2(xv)(b), opium means any mixture, with or without any neutral material, of the coagulated juice of the opium poppy; but does not include any preparation containing not more than 0.2 percent of morphine. In view of this definition, even if certain neutral materials are mixed in the coagulated juice of the opium poppy, it would amount to opium provided morphine contents are more than 0.2%. In the present case, morphine contents were found to be 10.6% by one laboratory and 9.88 % by another laboratory, which is much above minimum prescribed in clause (b). The learned counsel vehemently contended that purity of the opium has to be considered for the purpose of determining whether the accused was found in possession of commercial quantity of opium or not. For that purpose, he relied upon E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau 2008 ALL MR (Cri) 1318 (S.C.). In fact, E. Micheal Raj (Supra) pertains to the case of heroin, which is opium derivative under Section 2(xvi)(d) and is defined as diacetylmorphine, i.e., the alkaloid also known as dia-morphine or heroin and its salts. In view of the specific definition, heroin does not mean complete mixture of any material other than dia-morphine or diacetylmorphine and, therefore, purity of the heroin has to be considered for the purpose determining commercial quantity of heroin. The Supreme Court was considering the case of heroin to find out 11 whether it was commercial quantity or not. Language of opium derivative in respect of heroin is materially different from the language of the definition of opium in Section 2(xvi). Harjit Singh v/s. State of Punjab (2011) 4 Supreme Court Cases 441 deals with case of opium. The Supreme Court observed thus: “23. The judgment in E. Micheal Raj has dealt with heroin i.e. Diacetylmorphine which is an “opium derivative” within the meaning of the term as defined in Section 2(xvi) of the NDPS Act and therefore, a “manufactured drug” within the meaning of Section 2(xi)(a) of the NDPS Act. As such the ratio of the said judgment is not relevant to the adjudication of the present case.” 12 In view of the provisions referred to above, the opium could either (a) the coagulated juice of the opium poppy or (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy but does not include any preparation containing not more than 0.2 percent of morphine. While the first is the coagulated juice of the opium poppy, the second is mixture of the coagulated juice of the opium poppy with or without any neutral material. The proviso or expression but does not include any preparation containing not more than 0.2 percent of morphine governs only second kind, i.e., the mixture of coagulated juice of the opium poppy with or without any neutral material but is not applicable to the first kind, i.e., coagulated juice of opium poppy only. In Baidyanath Mishra and Another v. The State of Orissa: 1968 (XXXIV) Cuttack Law Times 1, the Supreme 12 Court considered the definition of opium in Section 3 of the Opium Act. It reads thus, “3. Interpretation-clause. In this Act, unless there be something repugnant in the subject or context, - “opium” means - (i) the capsules of the poppy (papaver somniferum L.),whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted therefrom; (ii) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii) any mixture, with or without neutral material, of any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent of morphine, or a manufactured drug as defined in section 2 of the Dangerous Drugs Act, 1930.” The Supreme Court observed thus, “3. ....In our opinion this contention cannot be allowed to prevail. To begin with, the question of 0.2 per cent of morphine does not arise in connection with the 2nd clause of the definition to which this opium obviously belonged. It refers to a preparation which means a mixture with or without neutral materials containing any other two forms of opium. ...” 13 13 Clause (iii) in the definition of opium in the Opium Act is almost similar to clause (b) in the definition of opium in NDPS Act. Therefore, it can be stated without any difficulty that proviso or expression “but does not include any preparation containing not more than 0.2 per cent of morphine” is applicable only to clause (b) or the second category of opium. In Harjit Singh (Supra), after quoting definition of opium under NDPS Act, the Supreme Court observed thus in paragraph 18: “Coagulated means solidified, clotted, curdled-something which has commenced in curdled/solid form. In case the offending material falls in clause (a) then the proviso to Section 2(xv) would not apply. The proviso would apply only in case the contraband recovered is in the form of a mixture which falls in clause (b) thereof” 14 Looking to the C.A. Reports with data of the analysis, it becomes clear that in this case opium falls in category “(a)” because all the important alkaloids and acids of opium were found in the sample and the analysis report does not show that any neutral material was found in the sample. Assuming that it was mixture of the coagulated juice of the opium poppy with some neutral material, in view of the presence of 9.88% or 10.6% of morphine therein, the whole of the material could be treated as opium. Therefore, it must be held that the total substance weighing 14.5 kg was opium. As per the Notification issued by the Central Government, small 14 and commercial quantities are provided for different narcotic drugs like codeine, morphine, opium , opium derivatives, heroin, etc. Commercial quantity for morphine is 250 gm. The learned trial Court on the basis of arguments advanced on behalf of the accused accepted that the total substance contained 1537 gm or 1.537 kg of morphine. If opium and morphine would be one and the same thing, the Government would not have provided separate and different commercial quantities and small quantities for opium and morphine. It appears that the learned Special Judge completely ignored the provisions about the commercial quantity and small quantity for different narcotic drugs and readily accepted arguments advanced by the advocate for the accused that because morphine weighs 1537 gm and it is less than 2.5 kg, the accused is entitled to be released on bail. If the Special Judge would have considered the quantity of morphine itself being more than 1.5 kg, he could not have granted bail because commercial quantity for morphine is only 250 gm. 15 The learned counsel for the accused/respondent contends that when there is conflicting opinion of two Chemical Analysers, benefit must go to the accused and for this purpose, he placed reliance on Sami Ullaha v. Superintendent, Narcotics Central Bureau CDJ 2008 SC 1839. In that case, one C.A. Report revealed that sample contained 2.6% of heroin while the another C.A. Report revealed that there was no heroin in the sample 15 and, therefore, the Supreme Court held that benefit would go to the accused and bail could not be cancelled. In the present case, difference is only about percentage of morphine in two reports. While one report shows that morphine contents were 10.6%, another report shows that it was 9.88%. Therefore, authority in Sami Ullah (Supra) is not applicable to the facts of the present case. 16 The learned counsel for the accused vehemently contended that the considerations for grant of bail are different for consideration of cancellation of bail and unless there are very strong and cogent reasons; or unless bail has been misused or the terms and conditions of the bail are breached, bail can not be cancelled. On the other hand, the learned counsel for the Union of India contends that if bail has been granted without looking to the gravity of the matter and if order granting bail is per-se illegal, High Court can certainly interfere and cancel the bail. In Anil Kumar Tulsiyani v. State of U.P. and Anr. (2006) 2 SCC (Cri) 565 after considering the law in respect of cancellation of bail, the Supreme Court observed thus, "10. By now it is well-settled principle of law that one of the considerations in granting bail in non- bailable offences is the gravity and the nature of the offence. The High Court has not at all addressed to this issue while granting bail to the respondent. 11. This Court in state of U.P. v. Amarmani Tripathi in which one of us (Raveendran,J) was a 16 member has considered various decisions of this Court and observed that the circumstances to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail" (SCC p.31, para 18) In that case, bail was granted to the accused, who was an Advocate and that order was challenged before the Supreme Court. The Supreme Court held that the respondent i.e. accused being an advocate was in commanding position and had standing in the society. In this background, there was reasonable apprehension of the witnesses being tampered with, coerced, threatened or intimidated by using his influence. As these circumstances were not considered by the High Court while granting bail, the Supreme Court set aside that order and cancelled bail. 17 In Puran V/s Rambilas and Another AIR 2001 SC 2023 , the bail was granted by the Sessions Court for the offence under Section 498-A and 304-A of Indian Penal Code, the High Court cancel the bail and 17 that order was challenged by the Accused before the Supreme Court. Their Lordships observed thus : 9 Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram & Ors. vs. State of Haryana reported in 1995 (1) S.C.C. 349. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected. 10. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is 18 totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in