SUAIB AHMAD vs UNION OF INDIA

This is second bail application, after dismissal of first bail application for non prosecution vide order 5.7.2016. Counter affidavit filed by Shri Sanjay Kumar Singh, Special Public Prosecutor (Narcotics) on behalf of opposite party, the Union of India is taken on record. Heard Shri Kamal Krishna, Senior Advocate assisted by Shri Pradeep Kumar Rai learned counsel for the applicant and Shri Sanjay Kumar Singh, Special Public Prosecutor (Narcotics) on behalf of opposite party, the Union of India.

Learned counsel for the applicant contended that the applicant has been falsely implicated for the recovery of commercial quantity of Narcotic drugs Buprenorphin; that as per averments made in F.I.R/recovery memo on 4.6.2014, upon search 232 ampoules of 2 ml each were recovered from the bag in the motorcycle driven by the applicant; that the recovery has been falsely planted of which there is no independent witness; that the compliance of provisions of Sections 42 and 50 of NDPS Act has not been made; that in view of 2004 SCC (Cri) 1303 Ouseph @ Thankachan vs. State of Kerala and according to the description mentioned on each ampoule of 2 ml, it contained 0.3 mg of Buprenorphin and so the total quantity of Buprenorphin recovered from applicant in 232 ampoules, come to only about 69.6 mg, which is much below the commercial quantity of 20 grams; that the applicant has no criminal history; that in (2014) 2 SCC (Cri) 563 State of Rajasthan vs. Parmanand and another it was held improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and they could be searched before PW 5 J.S. Negi who was part of raiding party and similarly in this case search of applicant before the gazetted officer Shri D.K. Singh, Superintendent, a member of raiding party may not be held proper; that the applicant undertakes that he will not make misuse the liberty of bail; that the applicant is in custody since 5.6.2014.

Per contra Shri Sanjay Kumar Singh, Special Public Prosecutor (Narcotics) vehemently opposed the prayer of bail and contended that it is wrong to say that the recovery of only 69.6 mg of Buprenorphin was made from applicant; that the case laws relied by applicant are not applicable to the facts of the case; that after 2004 SCC (Cri) 1303 (supra) in order to put the controversy or practice of wrong calculation of psychotropic substances following notification dated 18.11.2009 was added to the notification specifying small quantity and commercial quantity in the table. "4. The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content." that the calculation of recovered Narcotic drugs made by the applicant is wrong and incorrect in view of the above amendment brought through the notification dated 18.11.2009, and the entire volume of ampoules 232 x 2 ml = 464 ml which is equivalent to 464 gms is to be treated the quantity of prohibited contraband/psychotropic substances, which is much above commercial quantity; that it is wrong to say that the compliance of provisions of Sections 42 and 50 of NDPS Act was not made; that due compliance of provisions of NDPS Act was made at the time of recovery of prohibited contraband from the bag in motorcycle of applicant; that the facts of case (2014) 5 SCC 345 State of Rajasthan vs. Paramanand and another relied by applicant are different from the facts of the case; that no third option was given to applicant for search before the gazetted officer Sri D.K. Singh, Superintendent, member of raiding party and upon his willingness of applicant the search before him may not be held improper; that the recovery has been made in presence of two independent witnesses Dinesh Kumar Rai and Bagish Dutt Pandey; that there is no reason to falsely implicate the applicant; that as per amendment brought through notification of 2009, the entire quantity of the ampoule will be treated as the quantity of Narcotic drug/psychotropic substance recovered and not the number of contents mentioned therein; that the applicant if released on bail, shall make misuse liberty of bail and is not entitled for bail in view of provisions of section 37 of NDPS Act.

Upon hearing the learned counsel for the parties and perusal of record and considering the complicity of offence, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I do not find it a fit case for bail. The bail application of applicant Suaib Ahmad in Seizure No.05 of 2014 under Section 8/22 of NDPS Act, P.S. C.B.N. District Ghazipur is liable to be rejected.

Accordingly, the bail application is rejected. However, the trial court is directed to dispose of the trial expeditiously, in accordance with law.