1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.362 OF 2011 IN CRIMINAL APPLICATION NO.82 OF 2011 IN N.D.P.S. SPECIAL CASE NO.29 OF 2011 IN N.D.P.S. SPECIAL R.A.NO.132 OF 2010 IN N.D.P.S.SPECIAL C.R.NO.01 OF 2010 Fakir Ahmed Mohd. Shaikh Arthur Road Central Prison ...Applicant/Accused. v/s. The State of Maharashtra ...Respondent/Complainant. Mr. U.V.Arolkar , adv. For the Applicant. Mr. P.A.Pol, Public Prosecutor alongwith Mr.J.P.Yagnik, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 12, 2011. P.C. 1 Heard the learned counsel. Perused the papers. 2 This is the second application for bail filed by the applicant, who was allegedly found in possession of 1.100 kg of Charas. In the previous application, he had contended that as the charge-sheet was not filed within 60 days, accused was entitled to be released on bail under Section 167(2) of the Cr.P.C. It was also contended that data of the analysis was not provided by C.A., therefore, merely because C.A. 2 Report disclosed that contents were charas, it could not be held that accused was in possession of 1.100 kg charas, which is commercial quantity. Both these objections were rejected holding that merely because data was not given, it could not be presumed that quantity of the Charas seized from accused was not 1.100 kg and the quantity, being commercial quantity, charge-sheet could be filed within 180 days. 3 The second application is filed on three grounds. Firstly, even though the charge-sheet was filed after 142 days from the date of arrest, investigation was incomplete because data of the analysis was not supplied with C.A.Report and, therefore, C.A. Report was incomplete. It is contended that data was provided and investigation was infact completed long after 180 days. Merely because data of the analysis was not provided alongwith C.A. Report , it can not be said that investigation was not complete and, therefore, it can not be said that charge-sheet was not duly filed within 180 days from the date of arrest. In view of this, request for bail under Section 167(2) of the Cr.P.C. is liable to be rejected. 4 The learned counsel for the applicant further contends that provisions of Section 50 of the N.D.P.S.Act, which are mandatory were not complied. Panchanama reveals that after the accused was 3 apprehended, he was given a notice informing him about his right to be searched in presence of Magistrate or Gazetted Officer if he so desires. Panchanama shows that the accused stated that he did not require to be searched in presence of Magistrate or Gazetted Officer. After that police party took search and completed other formalities. The learned counsel contended that mere informing accused of his right to be searched in presence of Magistrate or Gazetted Officer is not sufficient and that it was also necessary that he should have been produced before the Magistrate or Gazetted Officer and then only it could be said that provisions are duly complied. In support of this, he placed reliance upon Narcotics Central Bureau v/s Sukh Dev Raj Sodhi 2011 ALL MR Criminal 2356 SC. From that judgment it appears that having informed accused of his right to be searched before the Magistrate or Gazetted Officer and after the accused had opted to be searched before Gazetted Officer, he was not taken to the Gazetted Officer nor his search was taken in presence of Gazetted Officer. Therefore, the Supreme Court held that provisions of Section 50 were not complied. If the accused opts to be searched either in presence of the Magistrate or Gazetted Officer, then it becomes duty of the police to take his search in presence of such Magistrate or Gazetted Officer, as the case may be, either by taking 4 accused to the said Magistrate or Gazetted Officer or by calling such Magistrate or Gazetted Officer at the spot. 5 The learned counsel for the accused/applicant relied upon Babulal & Others v. Union of India 1996 Cri.L.J. 1864 and Koluttumottil Razak v/s. State of Kerala (2000) 4 Supreme Court Cases 465 to emphasise that taking the accused to Magistrate or Gazetted Officer is necessary before the personal search could be taken and if search is not taken in presence of such Magistrate or Gazetted Officer, it is vitiated and mandatory provision of Section 50 are not complied. In Babulal and Others (Supra) , prosecution claimed that a Gazetted Officer was already with raiding party and, therefore, he was not taken to the closest Magistrate or Gazetted Officer. The Madhya Pradesh High Court held that mere presence of the Gazetted Officer alongwith the raiding party is not sufficient compliance of the mandatory provisions of Section 50. In Koluttumottil Razak (Supra), there was no written notice or information to the accused about his right to be searched in presence of Magistrate or Gazetted Officer nor there was any writing to show that the accused had refused to exercise that right. In his evidence, the police officer orally stated that the accused was informed about that right and he had told the police that he did not want 5 to be searched in presence of the Magistrate or Gazetted Officer. As that statement was not supported by any writing nor it was supported by any other witness, the Supreme Court did not believe that part of the statement of the police officer and held that provisions of Section 50 are not properly complied. 6 In the present case, record reveals that the accused did not opt to be searched either in presence of the Magistrate or Gazetted Officer and, therefore, question of his being taken to the Magistrate or Gazetted Officer or question of calling the Magistrate or Gazetted Officer at the spot for conducting search would not arise. In view of this I find no substance in the contention of the learned counsel that provisions of Section 50 were not complied. 7 The learned counsel for the accused vehemently contended that according to the prosecution, in present case 1.100 kg material, which was allegedly Charas was seized from the accused. According to him one of the samples was sent to the State Forensic Science Laboratory, Himachal Pradesh, Junga for purity test and as per the report from the said Forensic Laboratory; purified raisin found in the Exhibit was 25.21% . He argued that in view of this, in the total mass seized from the accused, purified raisin or actual charas is 277.31 gms which is 6 less than commercial quantity. As per entry 23 in the Table issued under Section 2(viia) and (xxiiia) of the N.D.P.S.Act, 1985, a small quantity of cannabis and cannabis resin, also known as charas, is 100 gms., while commercial quantity is 1 kg. The learned counsel contended that if the actual charas or purified resin was less than 1 kg, provisions of Section 37(1) of the N.D.P.S. Act in grant of bail would not be applicable because said section is applicable only if the commercial quantity is found. There can be no dispute about this legal proposition. Whether the charas found with the accused was commercial quantity or less than commercial quantity is the crux of the matter. If the accused is found in possession of the commercial quantity, his application for bail will have to be dealt with under Section 37(1) but if it was less than commercial quantity, provisions under Section 37(1) would not be applicable and his case will have to be independently considered under the provisions of Cr.P.C. Therefore, it will be necessary to find out whether prima-facie accused was found in possession of commercial quantity or less than commercial quantity of the charas. 8 As defined in Section 2(iii) (a), “cannabis (hemp)” means- charas, ganja or any other mixture of any of the forms of cannabis with or without neutral material. Charas is defined in clause (a). It reads 7 “(a) Charas, that is, the separate resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;” On careful perusal of this definition, it would appear that Charas is the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant. It indicates that resin must be separated from the cannabis plant and such separated resin may be in crude or purified form. Neutral material, which is not obtained from the cannabis plant, can not be treated as resin of the cannabis plant. Therefore, resin must have been obtained from the cannabis plant though it may be in crude form or purified form. It is held in E Micheal Raj v/s. Intelligence Officer, Narcotic Control Bureau (2008) 5 Supreme Court Cases 161 that in the mixture of narcotic drug or psychotropic substance, with the one or more neutral substances(s), the quantity of neutral substance(s) is not to be taken into consideration while determining the small or commercial quantity of the narcotic drug or psychotropic substance. It is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Therefore, if any neutral substance is found with the offending drug that neutral 8 material will have to be excluded and only offending drug will have to be considered for the purpose of deciding whether it was commercial quantity or small quantity or intermediate quantity 9 Examination report from the State Forensic Science Laboratory, Himachal Pradesh, Junga in the present case is important. Relevant portion reads thus, “RESULTS OF THE EXAMINATION” Various scientific tests such as physical identification, chemical and chromatographic analyses were carried out in the laboratory with the exhibit marked as A-1 under reference. The above tests performed indicated the presence of cannabinoids including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit. Charas is a resinous mass, which on testing was found present in the exhibit. The quantity of purified resin as found in the exhibit marked as A-1 is 25.21% w/w. The result thus obtained is given below. The exhibit marked as A-1 is extract of cannabis and entire mass is a sample of CHARAS” If this report is carefully read, it shows that test performed indicates presence of cannabinoids including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit. It explains that Charas is a resinous mass, which is found present in the exhibit. It shows that quantity of purified resin was 25.21% w/w. Result of the 9 analysis was that Exhibit A-1 the sample is extract of cannabis and entire mass is sample of charas. This report indicates that the sample is resin material and entire mass is the sample of charas though purified resin is 25.21%. 10 If percentage of the purified resin in the sample would be the only test to determine quantity of charas, then it could be said that total quantity reduced by 25.21% would be charas but as per the definition, resin obtained from the cannabis plant may be in crude or purified form. Applying test of definition to the sample it would appear that entire mass was the charas, i.e., separated resin, though it was in crude form, out of which 25.21% was purified resin. Test report does not show that there was any neutral substance in that sample. If there is no neutral substance in the sample and the whole of the sample was found to be extract from the cannabis, even though the purified resin may be 25.21%, the whole of the sample would be treated as crude form of the separated resin of the cannabis and, therefore, Charas. It is material to note that as per the examination report from the Directorate of Forensic Science Laboratory, Mumbai , which was initially submitted by the police, the sample exhibits were found to be Charas. As details of the purified resin were not given, samples were sent to State Forensic 10 Science Laboratory Himachal Pradesh at the request of the accused and the report from the State Forensic Science Laboratory Himachal Pradesh also confirms that the entire mass was Charas, though purified resin was 25.21% only. Taking into consideration the definition of Charas in Section 2(iii)(a), quantity of the charas can not be determined on the basis percentage of purified resin only . As long as the material is separated resin of cannabis plant, whether crude or purified, it is Charas. Neutral material, if found, only has to be excluded for the purpose of determining quantity in the light of the judgment of the Supreme Court in E. Micheal Raj (Supra). As in this case, no neutral material was found, it must be held, at least at this stage, that entire quantity was charas and as it was more than 1 kg. , it was commercial quantity. 11 The learned counsel for the accused/applicant relied upon judgment of this High Court in Criminal Appeal No.268 of 2008 Salim Ibrahim Chouhan @ Hussain @ Shaikh v/s. State of Maharashtra with Criminal Appeal No.325 of 2008 Nasir Abubaker Shaikh @ Nasir Chatai v/s. State of Maharashtra, arising out of conviction in the same case, decided by the Single Judge of this Court on 2nd July, 2008 in support of his contention that quantity of the charas has to be 11 decided on the basis of percentage of purified resin. In that case it was observed that as per the C.A.Report Ex.20, the percentage of charas was 5.63% and 4.40% and applying calculations on the basis of E. Micheal Raj (Supra) case, actual quantity of charas found with the said accused was 321.6 gms., and 264 gms. which was held to be less than commercial quantity. 12 He also relied upon Ram Lal v/s. State of H.P. 2007(3) Crimes 451 (H.P.). In that case, as per the C.A.Report, entire sample stuff was not resin or Charas but only 30.28 percent was resin. As total quantity was 2.500 kgs., it was held that if the Charas in that stuff was only 30.28% , actual Charas was 757 grams, which is less than commercial quantity. In my opinion, both these judgments are not applicable to the facts of the present case because in the present case as per both the C.A. Reports, samples were Charas and even detail report from the State Forensic Science Laboratory Himachal Pradesh also clearly shows that entire mass was Charas and there was no neutral material in the same. Therefore, it must be held that accused was found in possession of 1.100 kg. of charas, which is commercial quantity. 13 The learned counsel for the applicant contends that accused is about 58 years old and he is already in jail for the last about 9 months 12 and, therefore, in view of his age, he may be granted bail. As per his application, he also contends that he had no previous criminal antecedents. In my opinion, merely because he happens to be 58 years and he is near the age prescribed for the senior citizen, bail can not be granted in this case. In view of the facts and circumstances and the provisions of Section 37(1), accused is not entitled to be granted bail, however, it will be in the interest of justice to expedite the trial and dispose off the case as early as possible. 14 Therefore, the bail application stands rejected. The learned trial Court shall expedite the trial and dispose off the criminal case as early as possible and in any case, within one year. (J.H. BHATIA,J.)