IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.138 OF 2008 IN CRIMINAL APPEAL NO.878 OF 2007 IN SPL.N.D.P.S. CASE NO.36 OF 2003 Mrs.Oluwole Mutiat ...Applicant Versus Union of India & Anr. ...Respondents ...... Mr.Atul Sarpande for Applicant. Ms.R.M.Gadhavi for Respondent No.1. Mr.V.B.Konde-Deshmukh, A.P.P. for Respondent No.2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. APRIL 4, 2008. APRIL 4, 2008. APRIL 4, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Even though the Applicant has been found guilty of offence punishable under Section 8(c) r/w 21(c) and 28 r/w 23 and 8(c) r/w 29 of the NDPS Act by the lower Court, I am inclined to grant bail to : 2 : the Applicant for the following reasons. 3. In the first place, I see substance in the argument canvassed on behalf of the Applicant that the consistent view taken by the different High Courts as well as the Supreme Court is that the percentage of heroin found by the Analyst will be a relevant factor to consider the quantum of contraband in possession of the accused. In the present case, the Applicant has been found in possession of 5.700 kgs. of contraband, however, in the Public Analyst’s Report, it has been found that the heroin contents of the said contraband was only 2.0% of heroin. Relying on the exposition of the Apex Court in the case of Ouseph @ Thankachan Ouseph @ Thankachan Ouseph @ Thankachan vs. State of Kerala reported in (2004) 4 SCC 446 vs. State of Kerala reported in (2004) 4 SCC 446 vs. State of Kerala reported in (2004) 4 SCC 446, learned Counsel would contend that the possession of the contraband with the Applicant will have to be reckoned as only 114 gms. Counsel for the Applicant has pressed into service observations of the Apex Court in the said decision, in particular, in Para 8 where the Apex Court applied that principle for considering the limit of small quantity specified under the Notification which : 3 : provides that each ampoule contained only 2ml and each ml contains only .3 mg. Applying the said formula, the Apex Court proceeded to hold that it follows that the total quantity found in possession of the Applicant in that case is only 66 mg, which is less than 1/10th of the limit of small quantity specified under the Notification. Heavily relying on this observation, the Delhi High Court in the case of Ansar Ahmed etc.,etc. vs. State (Govt. Ansar Ahmed etc.,etc. vs. State (Govt. Ansar Ahmed etc.,etc. vs. State (Govt. of NCT of Delhi) reported in 2005 (4) Crimes 598 of NCT of Delhi) reported in 2005 (4) Crimes 598 of NCT of Delhi) reported in 2005 (4) Crimes 598 (Del.) (Del.) (Del.) granted benefit to the accused tried for similar offence whole considering their respective bail applications. On the basis of the opinion recorded by the Analyst, the Delhi High Court computed the possession of the respective accused by multiplying the total quantity by the percentage identified by the Analyst and divided the same by 100 to arrive at the actual contents of diacetylmorphine in the respective cases. Similar approach was adopted in the another decision of the Delhi High Court in the case of Directorate of Directorate of Directorate of Revenue Intelligence vs. Tehal Singh & Ors. Revenue Intelligence vs. Tehal Singh & Ors. Revenue Intelligence vs. Tehal Singh & Ors. reported in 2006 (1) Crimes 596 reported in 2006 (1) Crimes 596 reported in 2006 (1) Crimes 596. Reliance is also placed on the decisions of our High Court in the : 4 : case of The Customs vs. Prince Ozochokwu Uzozie in The Customs vs. Prince Ozochokwu Uzozie in The Customs vs. Prince Ozochokwu Uzozie in Confirmation Case No.6 of 2002 & Ors. decided on Confirmation Case No.6 of 2002 & Ors. decided on Confirmation Case No.6 of 2002 & Ors. decided on 26th October 2004 26th October 2004 26th October 2004 (in particular, Paragraph 12 thereof) as also decision of Single Judge of the High Court in the case of Chandrakant Khare vs. Chandrakant Khare vs. Chandrakant Khare vs. State of Maharashtra reported in 2004 (1) JD 174 State of Maharashtra reported in 2004 (1) JD 174 State of Maharashtra reported in 2004 (1) JD 174 (Paragraph 5), in the case of Karansingh Kumansingh Karansingh Kumansingh Karansingh Kumansingh Rajput & Ors. vs. State of Maharashtra reported Rajput & Ors. vs. State of Maharashtra reported Rajput & Ors. vs. State of Maharashtra reported in 2004 (1) JD 107 in 2004 (1) JD 107 in 2004 (1) JD 107 (in particular, Paragraphs 6 and 7), in the case of Prabhakar Dhondiram Waghchaure Prabhakar Dhondiram Waghchaure Prabhakar Dhondiram Waghchaure vs. State of Maharashtra reported in 2006 All MR vs. State of Maharashtra reported in 2006 All MR vs. State of Maharashtra reported in 2006 All MR (Cri.) 1664 (Cri.) 1664 (Cri.) 1664 (in particular, Paragraph 9). Reliance is also placed on other unreported decisions of this Court. It is not necessary to multiply the Authorities on which the Counsel for the Applicant has placed reliance. 4. Suffice it to observe that the consistent approach of the concerned Courts including the Apex Court, as can be discerned from the decisions referred to above, to compute the quantity possessed by the concerned accused is, by taking into account the percentage of the contents of the drug derived by the Analyst in his report. : 5 : Applying the said formula to the case on hand, I am in agreement with the argument of the Applicant that in that event, the possession of the Applicant would be only 114 gms of heroin, which is less than the commercial quantity. If so, the rigours of Section 37 of the NDPS Act will have no application to the fact situation of the present case. Indeed, this is a prima facie view required to be expressed at this stage for considering the prayer for bail. 5. There is yet another reason which has been pressed into service on behalf of the Applicant. According to the Applicant, it is common ground that the Applicant is suffering from breast cancer and that ailment is in advanced stage. The Applicant is in custody since 8th February 2003. Besides, there is no possibility of Appeal being taken up for hearing in th near future and that the Applicant has already undergone 50% of imprisonment, which is substantial period for the offence in questions, if the same is to be ultimately held as pertaining to quantity less than th commercial quantity. : 6 : 6. In my opinion, therefore, the Applicant deserves to be enlarged on bail even though the Counsel for Respondent No.1 has strongly opposed the grant of bail to the Applicant, having regard to the nature of offence. 7. Taking overall view of the matter, as I am inclined to prima facie hold that the rigours of Section 37 of the Act will have no application to the fact situation of the present case, the Applicant is ordered to be released on bail on the following terms: (a) The Applicant Mrs.Oluwole Mutiat is directed to be released on bail in connection with offence in NDPS Spl.Case No.36 of 2003, if not required in any other case, on executing bail bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with two local sureties in the like amount. (b) The Applicant shall report to the Superintendent, NCB Office, Mumbai : 7 : once a week on every Monday between 10.00 a.m. to 2.00 p.m. till further orders to be passed by this Court and/or disposal of the Appeal. (c) The Applicant shall inform her latest place of residence immediately after being released and/or change of residence, if any from time to time to the Superintendent, Narcotics Control Bureau, Mumbai. (d) The Applicant shall deposit passport, if any, with the Superintendent, Narcotics Control Bureau, Mumbai, within three weeks from the date of her release, which will be retained by the said Officer till further order to be passed by this Court. In case, the Applicant does not have any passport or has already deposited the same with any Authority, shall file affidavit to that effect within three weeks from the date of her release in this Court. : 8 : (e) The Applicant shall not travel outside Mumbai without prior permission of this Court. 8. Application disposed of accordingly. 9. At this stage, Counsel for Respondent No.1 prays that the operation of this order be stayed to enable the Respondent to carry the matter in Appeal. The request being reasonable one, is granted. The operation of this order is stayed for three weeks. A.M.KHANWILKAR, J.