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Shakeel Ahmad v. Union Of India
Factual and Procedural Background
On 5.10.2008, Mr. N.S Bisht, Deputy Information Officer of N.C.B Lucknow, stopped a motorcycle based on a tip-off. The driver, who identified himself as Shakil Ahmad, attempted to escape but was detained. He was offered the option to have the search conducted in the presence of a Magistrate or a Gazetted Officer, but he declined. Subsequently, a search was conducted in the presence of two public witnesses, Sanjay and Shamsher. A bag recovered from the motorcycle contained 500 grams of contraband, which upon laboratory analysis at the Central Revenue Control Laboratory, Government of India, was found to contain only 7% heroin. The accused has been in jail since the date of arrest. This opinion addresses an application for bail filed by the accused.
Legal Issues Presented
- Whether the relevant quantity for determining the nature of the offense under the NDPS Act is the total weight of the recovered contraband or the weight of the actual heroin content based on laboratory analysis.
- Whether the accused is entitled to bail given that the heroin content in the recovered substance is below the commercial quantity as defined under the NDPS Act.
Arguments of the Parties
Applicant's Arguments
- The laboratory report shows only 7% heroin in the 500 grams of recovered contraband, amounting to 35 grams of heroin.
- Since 35 grams is below the commercial quantity threshold, the accused should be granted bail.
- Relied on the Apex Court judgment in E. Micheal Raj v. Intelligence Officer N.C.B (2008 65 AIC 112 SC) to support the argument that the heroin content, not the total weight, is determinative.
- The accused has been in custody since 5.10.2008 and bail should be considered in light of these facts.
Union of India’s Arguments
- Even if the heroin quantity is 35 grams, it exceeds the small quantity threshold.
- The accused has confessed guilt under section 67 of the NDPS Act.
- Therefore, bail should not be granted.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| E. Micheal Raj v. Intelligence Officer N.C.B (2008 65 AIC 112 SC) | The NDPS (Amendment) Act, 2001 introduced graded sentences linked to the quantity of narcotic drugs or psychotropic substances. The relevant quantity for punishment is the actual narcotic content, not the total weight of the mixture. Definitions of "small quantity" and "commercial quantity" under sections 2 (xxiii-a) and 2 (vii-a). | The court accepted that the percentage of heroin content translated into weight is relevant for determining the quantity of narcotic substance involved, applying this principle to the present case. |
| State Of NCT Of Delhi v. Ashif Khan Alias Kalu (2009 2 SCC Cri 54) | Affirmed that the quantity of the narcotic drug or psychotropic substance found in a mixture is relevant for imposition of punishment. | The court followed this precedent to reinforce that the heroin content, not total mixture weight, is determinative. |
Court's Reasoning and Analysis
The court examined the arguments and noted the amendment to the NDPS Act by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, which introduced a graduated sentencing scheme based on the quantity of the narcotic substance actually present. The court relied on the Apex Court's ruling in E. Micheal Raj v. Intelligence Officer N.C.B, which clarified that the relevant quantity for sentencing is the actual narcotic content as determined by chemical analysis, not the total weight of the seized mixture.
Applying this principle, the court accepted that although 500 grams of contraband was seized, the heroin content was only 35 grams, which is below the commercial quantity threshold of 250 grams. The court also noted the accused's prolonged detention since 5.10.2008. Without expressing any opinion on the merits of the case, the court concluded that bail may be granted under these circumstances.
Holding and Implications
The application for bail is allowed.
The accused, Shakeel Ahmad, is ordered to be released on bail subject to executing a personal bond and furnishing two sureties. Conditions include regular appearance in the lower court, no adjournments on dates when prosecution witnesses are present, and no intimidation or tampering with evidence. Violation of these conditions may result in cancellation of bail upon report to the High Court.
This decision directly affects the parties by granting bail to the accused under specified conditions. The court did not express any new precedent beyond applying established principles from prior Supreme Court judgments.
Rajesh Chandra, J.:— Learned Counsel for the applicant and Union of India present.
2. In brief the facts are that on 5.10.2008 Mr. N.S Bisht, Deputy Information Officer of N.C.B Lucknow on a tip off stopped a motorcycle. The driver of the motorcycle tried to escape but he was detained. He disclosed his name as Shakil Ahmad. Thereafter an option was given to him that his search may be taken in the presence of a Magistrate or a Gazetted Officer and that it is his right. The accused however did not avail the option. Thereafter a search of the motorcycle was made in the presence of two public witnesses namely, Sanjay and Shamsher. A bag was recovered from the motorcycle in which 500 grams of heroin was recovered. Sample of the recovered contraband article was analysed at “Central Revenue Control Laboratory, Government of India” in which it was found that the percentage of Heroin is only 7%.
3. The learned Counsel for the applicant argued that in the sample only 7% of Heroin was found hence the total weight of Heroin in the recovered contraband comes to 35 grams which is much below the commercial quantity. He has relied upon the judgment of Apex Court in E. Micheal Raj v. Intelligence Officer N.C.B 2008 65 AIC 112 SC and has argued that since the recovered Heroin is less than the commercial quantity and the accused is in jail since 5.10.2008, he maybe allowed bail.
4. Learned Counsel for the Union of India argued that even if the re covered quantity of heroin is 35 grams, it is above the small quantity and the accused has confessed his guilt in the statement recorded under section 67 of NDPS Act hence the bail should not be allowed.
5. I considered over the respective arguments. The main submission of the learned Counsel for the applicant is that although 500 grams of contraband was allegedly recovered from the possession of the applicant but in the report of scientific laboratory the percentage of heroin in the recovered contraband is only 7% which means that the actual heroin in the contraband article was only 35 grams which is much below the commercial quantity.
6. In E. Micheal Raj v. Intelligence Officer, N.C.B the Apex Court held as under:
1. The provisions of the NDPS Act, were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f 2.10.2001), which rationalised the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried.
2. Thus, by the amending Act, the sentence structure changed drastically. “Small quantity” and “commercial quantity” were defined under section 2 (xxiii-a) and section 2 (vii-a) respectively. New section 21 also provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending materials.
3. As per Entry 56 of the Notification dated 19.10.2001 issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gm. and commercial quantity has been mentioned as 250 gm.
4. So, the basic question for decision is whether the contravention involved in this case is small, intermediate or commercial quantity under section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused.
7. It was held that the percentage of Heroin content translated into weight is relevant.
8. The aforesaid judgment was followed by the Supreme Court in State Of Nct Of Delhi v. Ashif Khan Alias Kalu. 2009 2 SCC Cri 54. and it was held that the quantity of the narcotic drug or psychotropic substance found in the mixure is relevant for the purpose of imposition of punishment.
9. Since the Apex Court has taken a view that it is not the total quantity of the recovered article which has to be taken into consideration while awarding punishment but only the percentage of heroin reported to be present in the report of the Chemical Analyst, the argument advanced on behalf of the Counsel for the applicant that the same yardstick be adopted in the present case, should be accepted. Since the total quantity of heroin in the recovered 500 grams contraband is only 35 grams, it is definitely less than the commercial quantity. The accused-applicant is in jail since 5.10.2008
10. After considering the entire facts and circumstances of the case and without expressing any opinion on merits, I am of the view that the accused-applicant may be released on bail.
11. Let the accused-applicant Shakeel Ahmad be released on bail in case crime No. 13 of 2008, under sections 8/21 and 27-A of N.D.P.S Act, P.S.N.C.B Lucknow, District Varanasi, on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Court concerned on following conditions:
1. Accused-applicant shall appear in the Lower Court regularly either personally or through Counsel.
2. He will not seek any adjournment on the date when the prosecution witnesses are present.
3. He shall not in any manner either intimidate or influence the witnesses or tamper with the evidence.
12. If any of these conditions are violated the Court shall report the matter to the High Court so that the steps for cancellation of bail may be taken. Let a copy of this order be sent to the C.J.M, Varanasi to ensure compliance of this order.
13. Application Allowed.
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