Crl. Misc. No. M-13020 of 2011 :1: IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * Crl. Misc. No. M-13020 of 2011 Date of decision : July 8, 2011 * * * * * Rajiv Thaman ............Petitioner Versus State of Punjab ...........Respondent * * * * * CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN * * * * * Present: Mr. R.S Rai, Senior Advocate with Mr. D.S Brar, Advocate for the petitioner. Mr. A.S Rai, DAG, Punjab. * * * * * Rakesh Kumar Jain, J (ORAL) This petition has been filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner in case FIR No.10 dated 23.1.2011 registered under Sections 22/61/85 NDPS Act at Police Station City, Ahmedgarh. As per allegations contained in the FIR, the petitioner was apprehended with certain alleged intoxicating drugs. The regular bail of the petitioner was dismissed on 21.4.2011 by the Court below in which it was observed that he was found in possession of 3000 intoxicating tablets of Momolit, 3000 ML intoxicating liquor and 900 grams of intoxicating powder. Although, it was argued before the Court below, on behalf of the petitioner, that he is running a Chemist Crl. Misc. No. M-13020 of 2011 :2: Shop with a valid licence but his application was dismissed on the ground that the report of the chemical examiner was not received and the huge quantity of intoxicating tablets, liquid etc. has been recovered from him. Aggrieved against dismissal of the application by the court below, the present petition has been filed in which notice was issued on 7.5.2011 and State was directed to get the report of the chemical examiner. In the meantime, the report of the chemical examiner was filed on 6.7.2011. Copy was given to the counsel for the petitioner who had prayed for time to file his documents. According to the report of the Chemical Examiner, these items were identified and tested namely, Codeine Phosphate-3000 ML, 9.8 mg per 5 ML, Nitrazcpam-900 gm 1.4%, Diphenoxylax and Hydrochloride-3000 tablets 2.4 mg per tablet, Atropine Sulphate- 3000 tablets .023 mg per tablet. The conclusion of the report reads as under, “The contents of bottle no.1 and parcels no. 2 and 3 under reference have been analysed separately by chemical analysis. On the basis of analysis the ingredients along with their quantity found present in these have been given at serial no.8 (Identification and tests) of this report” Learned counsel for the petitioner has placed on record the chart of the aforesaid medicines to project that even if the report is taken to be correct, the quantity which has been recovered from the petitioner falls within the definition of small quantity. The chart Crl. Misc. No. M-13020 of 2011 :3: produced by the petitioner is reproduced as under:-- Name Recovered As per report Total quantity calculated AS PER ACT S.No. Small Commer- cial Codeine Phosphate 3000ML 9.8 MG per 5 ML 5 ml contains - 9.8 mg 1 ml contains – 9.8 5 3000 ml contains- 9.8x 3000=5880 5 Mg 5880 gm = 5.880gm 1000 28 10 gm 1 Kg Nitrazcpam 900 gm 1.40% 1.4% if 900 gm=14x900 10x100 = 126=12.6 gm 10 221 20 gm 500gm Diphenoxylax Hydrochloride 3000 tablets 2.4 mg per tablet 1 tab contains 2.4 mg 3000 contains 2.4 x 3000= 24 x 3000=7200 mg 10 =7200 gm=7.2 gm 1000 44 2gm 50 gm Atropine Sulphate 3000 tablets .023 mg per tablet 1 tab contains= 0.023 mg 3000 contains=0.023x3000 =23 x 3000 =69 mg 1000 =69 gm = .069 gms 1000 Not mentioned in section 2 (vii) (a) and (xxiii) (a) of the NDPS Act 1985 Therefore does not fall under the preview of NDPS Act According to the counsel for the petitioner, Codeine Phosphate is at serial no.28, Nitrazcpam is at serial no.221 and Diphenoxylax Hydrochloride is at serial no.44 of the table given under the NDPS Act, 1985 wherein they have been termed items of the Crl. Misc. No. M-13020 of 2011 :4: small quantity. Counsel for the petitioner has submitted that though the recovered medicines/drugs are not intoxicants yet for the sake of argument it is submitted that it falls under the small/ non-commercial quantity to which Section 22 of the NDPS Act, 1985 is not attracted. Counsel for the petitioner further submitted that petitioner is a chemist who is keeping this medicine at his shop under a licence and at any cost he cannot be termed as trafficker under the Narcotic Drugs and Psychotropic Substances Act, 1985. He further submitted that petitioner is in custody since 23.1.2011 and the challan has been filed. No further investigation is to be conducted nor he is a previous convict or required in any other case. On the contrary, counsel for the State has argued that a huge quanity of medicine has been recovered from th petitioner at a distance from his chemist shop. After hearing the learned counsel for the parties and withut observing on the merits of the case, I find this case to be fit for grant of bail and hence the petitioner is directed to be released on bail on his furnishing bail bonds to the satisfaction of CJM/Duty Magistrate, Sangrur. JULY 8, 2011 ( Rakesh Kumar Jain ) ritu JUDGE