// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Criminal Revision Petition No.277/2005 Sami Ullaha S/o Mustkin Khan & Another Versus Narcotic Central Bureau through PP Date of Judgment ::: 19th February, 2008 PRESENT Hon'ble Mr. Justice Narendra Kumar Jain Shri Anil Upman, Counsel for accused-petitioners Shri Laxman Madnani, Special Public Prosecutor, for Central Bureau Narcotic. By the Court:- Heard learned counsel for the parties. The accused-petitioners have preferred this criminal revision petition under Section 397 of the Code of Criminal Procedure challenging the impugned order dated 15th March, 2005, passed by the Special Judge, Narcotic Drugs and Psychotropic Substances cases, Jaipur, whereby an application filed by the Public Prosecutor/complainant under Section 439(2) of the Code of Criminal Procedure (for short, 'Cr.P.C.') read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, 'the Act of 1985') for cancellation of order dated 25th September, 2004 granting bail to the petitioners, was allowed and the petitioners were directed to surrender themselves before the trial court within a period of seven days. Briefly stated the facts of the case are that on 14th August, 2004 the contraband, i.e. Heroin, weighing two kilogram was recovered during search from accused-persons, namely Abdul Munaf and Zahid Hussein when they were going to give it to Sami-ullaha. The sample of contraband was taken and sealed in packets marked A1 and A2. The sample packet A1 was sent for chemical examination to Forensic Science Laboratory, Neemuch, from where a negative report was received. // 2 // The Central Narcotic Bureau, Jaipur, moved an application in the trial court under Section 169 of the Cr.P.C. read with Sections 8/21 and 8/29 of the Act of 1985 stating therein that the contraband Heroin weighing two kilogram was recovered from the accused- persons Abdul Munaf and Zahid Hussein and Case No.1/2004 was registered. The notice under Section 67 of the Act of 1985 was issued to all the three accused-persons, wherein they confirmed about Heroin weighing two kilogram. The independent witnesses also confirmed seizure of two kilogram Heroin. The accused- persons were arrested. The Forensic Science Laboratory, Neemuch, has given negative report, therefore, it was necessary to send another sample for chemical examination to Forensic Science Laboratory i.e. C.R.C.L., New Delhi. The accused-persons filed reply to the above application and contended that statement recorded under Section 67 of the Act, were not given voluntarily. They further contended that negative report has come from Laboratory, Neemuch, therefore, the application of the complainant be dismissed and they may be discharged and released immediately. The trial court, vide its order dated 25th September, 2004, dismissed the application of the complainant with an observation that the prosecution is free to send another sample for its chemical examination to another Laboratory. The trial court, however, passed an order to release the accused- persons on bail. Subsequently the prosecution sent another sample of contraband marked A2, to C.R.C.L., New Delhi, for examination, from where a positive report came on 6th January, 2005 and it was confirmed that the recovered contraband was Heroin and consequently a challan was filed against the accused-persons for the offence under Sections 8/21 and 8/29 of the Act of 1985. The Central Narcotic Bureau thereafter moved an application under Section 439(2) of the Cr.P.C. read // 3 // with Section 37 of the Act of 1985 for cancellation of earlier order dated 25th September, 2004, whereby accused-persons were released on bail. It was contended in the application that as per the report of C.R.C.L., New Delhi, given on second sample, it is clear that the contraband article was Heroin. The weigh of the contraband article was of commercial quantity. There is sufficient evidence available on the record to connect the accused-persons with the crime and to frame charge against them for the above offence, therefore, in view of the specific provisions of Section 37 of the Act of 1985, there are no reasonable grounds for believing that the accused- persons are not guilty of such offence and, in these circumstances, the earlier order granting bail to accused persons be cancelled and they may be taken into custody. The learned trial court, after hearing the arguments of both the sides, vide its impugned order dated 15th March, 2005, allowed the application filed by the Central Narcotic Bureau and cancelled the earlier order dated 25th September, 2004 and directed the petitioners to surrender themselves before the Court within a period of seven days. The said order is under challenge in this revision petition. The learned counsel for the petitioners contended that as per the Laboratory situated at Neemuch the contraband article was not found to be Heroin and accused-persons were rightly released on bail and they could not have been taken into custody again by cancelling their earlier bail order on the basis of another report from C.R.C.L., New Delhi, corroborating the fact that the contraband article was Heroin, placed on the record. He, therefore, contended that the impugned order passed by the trial court is liable to be set-aside. The learned counsel for the Central Narcotics Bureau contended that contraband i.e. Heroin weighing two kilogram, which is a commercial quantity, was recovered from the accused-persons in the present case // 4 // and it was a serious matter. However, on the basis of the report, received from Laboratory, Neemuch, the accused-persons were released on bail. The second sample of the contraband was sent for chemical examination to New Delhi and, according to the report of C.R.C.L., New Delhi, the contraband was found to be of Heroin. He also referred to the statement recorded under Section 67 of the Act of 1985, wherein the fact of contraband being Heroin was confirmed. The other evidence was also available to corroborate that contraband article seized in the present case was Heroin. He contended that the prosecution had every right to investigate the matter and to collect additional evidence and, therefore, after receipt of second report from C.R.C.L., New Delhi, a charge-sheet was submitted in the case against the accused-persons and only thereafter the present application was moved under Section 439(2) of the Cr.P.C. read with Section 37 of the Act of 1985 for cancellation of the bail, which has rightly been allowed by the trial court. He contended that there is no illegality or perversity in the impugned order so as to interfere in this revision petition. He also contended that the petitioners may apply for bail before this Court under Section 439 of the Cr.P.C. and, in view of the fact that there is a specific provision for bail, this revision petition under Section 397 of the Cr.P.C. should not be entertained. I have considered the submissions of learned counsel for both the parties and examined both the orders dated 25th September, 2004 as well as 15th March, 2005 passed by the trial court. The second report given by C.R.C.L., New Delhi, dated 6th January, 2005, confirms that the contraband article was Heroin. The weigh of article is two kilogram. As per the Notification dated 19th October, 2001 issued under Section 2 of the Act of 1985 the small quantity of Heroin is only five gram. The commercial quantity of Heroin has been quantified as 250 gram and more. In the present case the quantity of recovered contraband // 5 // is 2 kilogram. Apart from the report of C.R.C.L., New Delhi, dated 6th January, 2005, there is other material evidence including statement recorded under Section 67 of the Act available on the record to prove that the contraband article was Heroin. The Act of 1985 has been enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Section 37 of the Act of 1985 is very relevant to be referred in the present matter which says that notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence punishable under Section 19 or Section 24 or Section 27A and also for offence involving commercial quantity shall be released on bail or on his own bonds unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The trial court has discussed the facts and circumstances of the present case in detail and observed that the contraband weighing two kilogram Heroin was recovered in the present case. The prosecution was fully entitled to send another sample for chemical examination to C.R.C.L., New Delhi, and to collect any other or further evidence in the case during investigation thereof. The trial court also observed that a charge of the offence has already been framed against the accused-persons. There are serious allegations against the accused-persons with regard to an offence wherein minimum sentence of 10 years rigorous imprisonment and a fine of Rs.1,00,000/- is provided. The trial court, while exercising his discretion, recalled its earlier order dated 25th September, 2004 and cancelled the same directing the petitioners to surrender themselves before the trial court. In view of the above, I am of the view that the trial court was fully justified in passing the // 6 // impugned order dated 15.03.2005. I do not find any illegality or perversity in the impugned order passed by the trial court so as to interfere therein in the revisional jurisdiction. However, it will be open for the petitioners to move a fresh application for bail before the trial court itself or before the High Court and in case such an application is filed then the said court will consider the application in accordance with law without being influenced with any observations of the trial court in its order dated 15th March, 2005 or of this Court in this order. It is further made clear that the observations, if any made in this order, will not come in the way of the accused-persons in any manner whatsoever during trial of the case. With the aforesaid observations, the revision petition is dismissed. (Narendra Kumar Jain) J. //Jaiman// S.No.4