This application has been filed under Section 439 of the Code of Criminal Procedure, 1973, to release the applicant on regular bail in connection with CR No.II-3032 of 2011 registered with Khambat City Police Station, Anand, for the offence punishable under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS' for short) alleging that the applicant and other person was found to have been carrying opium weighing 1.870 kg.
Heard learned Senior Counsel, Mr.S.V.Raju for Mr.S.R.Sharma for the applicant and Ms.Krina Calla, learned Public Prosecutor for respondent-State.
It is submitted by learned senior counsel, Mr.Raju that the applicant is innocent and has been falsely involved in the case. It is further submitted that charge sheet papers prima facie do not disclose any offence under Secs.18 and 29 of the NDPS Act as there is no FSL report to indicate that the substance found from the possession of the applicant is opium. According to him, the certificate of Scientific Officer attached with the charge sheet is not sufficient to indicate the substance allegedly found from the applicant is opium as the procedures carried out is not mentioned in the certificate. It is further submitted that even if it is believed that the substance allegedly found from the applicant is opium, then also, only 1.870 kg is found which is less than the commercial quantity and hence, rigor of Sec.37 of the NDPS Act would not be applicable. In this connection, he has relied on order dated 5-7-2011 passed by a learned Single Judge of this Court delivered in Cri.Misc.Appln.No.9092 of 2011, order dated 23-9-2011 passed in Cri.Misc.Appln.No.12823 of 2011, order dated 1-12-2011 passed in Cri.Misc.Appln.No.16215 of 2011 and order dated 19-10-2011 passed in Cri.Misc.Appln.No.14819 of 2011 and contended that as the applicant is found to be in possession of opium which is less than the commercial quantity, the applicant may be released on bail as he is in custody since 21-5-2011.
Learned APP, Ms.Krina Calla for the respondent-State has contended that the applicant is involved in the serious case of NDPS Act and hence, this Court should not use its discretion to enlarge the applicant on bail.
This Court has gone through the charge sheet papers and also the table specifying small quantity and commercial quantity. Sr.No.92 of the table specifically mentions small quantity in case of opium as 25 gm while commercial quantity is 2.5 kg. It is to be noted that the applicant is found to have possessed 1.870 kg of opium. It is true that quantity seized from the applicant is less than the commercial quantity, however, it is much above the small quantity and, therefore, rigor of Sec.37 of the NDPS Act may not be attracted. However, as stated above, the quantity of opium much above the small quantity has been found from the conscious possession of the applicant. It is to be noted that using of contraband article opium is more dangerous to the health of the public than ganja.
As regards the contention of Mr.Raju for the applicant that substance seized from the applicant is not opium, it may be noted that the certificate issued by the Scientific Officer prima facie shows that the substance seized from the applicant is opium. This Court would not like to appreciate the evidence appearing on record at this stage as it may prejudice the parties in trial. In view of the fact that quantity of opium much above the small quantity is seized from the applicant, this Court would not like to use its discretion in enlarging the applicant on bail by giving benefit of the orders relied on by the learned counsel for the applicant.
In view of the above, this application is rejected. Rule is discharged. Looking to the facts that charge sheet is filed and the applicant is in judicial custody since 21-5-2011, trial court is directed to complete the trial as early as possible preferably within one year from today.
The observations made by this Court in this order being made for the purpose of deciding this application may not prejudice the parties in future application or in trial.
[M.D.SHAH,J.] radhan Top