Badar Durrez Ahmed, J.
1. The petitioner is in judicial custody since 28.08.2002. The facts as alleged by the prosecution are that on 20.07.2002 on the basis of a secret information, the petitioner alongw.ith co-accused Manoj Raj Pal Singh was apprehended and, on search, the petitioner was found to be in possession of 500 grams of a substance, described as light cream powder, which was kept in a plastic polypack. The said substance was suspected to be heroin. Samples of the recovered substance were taken and were sent to the Forensic Science Laboratory, Government of NCT of Delhi for Chemical analysis. By a report dated 25.09.2002, the Forensic Science Laboratory indicated that on Chemical examination, the sample tested positive for the presence of diacetylmorphine. The sample received by the Forensic Science Laboratory was described as off white coloured powder stated to be smack weighing 5.39 grams (with polythene). During trial, on the directions of the trial court, the investigating officer sent another sample for its analysis with the specific request to indicate the percentage of diacetylmorphine. The Forensic Science Laboratory by its report dated 05.05.2004 described the sample sent to it as light brown coloured powder weighing approximately 2.3 grams (with polythene). The said report revealed that on Gas Chromatography examination, the sample was found to contain diacetylmorphine 5.1 percent. The learned counsel for the petitioner submitted that if the percentage content of diacetylmorphine (heroin) is converted into weight, then it comes to 25.5 grams of diacetylmorphine in the alleged recovered substance of 500 grams. Accordingly, he submitted that it was not a commercial quantity and, thereforee, the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) would not apply and the petitioner, who was in custody for over three and half years, ought to be released on bail, particularly as he had no criminal antecedents.
2. The learned Counsel appearing for the petitioner argued that it is not the total weight of the substance allegedly recovered that is material but, the percentage content of heroin translated into weight that is relevant for determining whether the recovery is of a small quantity or a commercial quantity or an intermediate quantity. He relied upon the decision of this court in the case of Ansar Ahmed and ors v. State : 123(2005)DLT563 wherein it was held that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a small quantity or a commercial quantity. The contrary argument of the learned Counsel who appeared for the State and urged that only the weight of the substance recovered ought to be seen was rejected. The view espoused on behalf of the State was that once the substance tested positive for heroin, its percentage content in the substance was irrelevant; the entire substance would be viewed as a narcotic drug and consequently the total weight of the substance ought to be taken into consideration for determining whether it was a small quantity or a commercial quantity. This view was rejected. This would be clear from the following observations and conclusions in Ansar Ahmed (supra):-
A9. It is, thereforee, Entry 56 which shall apply. The quantities of heroin (diacetylmorphine) specified therein are by weight. Keeping in mind that the object of introducing this classification was to rationalise the sentencing structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment, it does appear to me that what has to be seen is the content of heroin by weight in the mixture and not the weight of the mixture as such. Otherwise, anomalous consequences would follow. While a recovery of 4 grams of heroin would amount to a small quantity, the same 4 grams mixed up with say 250 grams of powdered sugar would be quantified as a commercial quantity! And, where would this absurdity stop Suppose one were to throw a pinch of heroin (say 0.5 gram) into a polythene bag containing small steel ball bearings having a total weight of 1kg: would the steel ball bearings be also weighed in and it be declared that a commercial quantity (1000.5 grams) of heroin was recovered! Surely, it is only the content of heroin (0.5 gram) in the mixture of heroin and steel ball bearings that is relevant Clearly, then, it would qualify as a small quantity. thereforee, in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substances is not to be taken in considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered. Only the actual content by weight of the narcotic drug or the psychotropic substance (as the case may be) is relevant for determining whether it would constitute a small quantity or a commercial quantity.
Thus, the issue of determining small and commercial quantitiesby the actual content by weight of the narcotic drug or psychotropic substance (as the case may be) in a mixture with one or more neutral substances stood settled by Ansar Ahmed (supra). But, Mr Pawan Sharma, appearing for the State, submits that after the decision in Ansar Ahmed (supra), the Supreme Court has rendered a decision in the case of Amarsingh Ramji Barot v State of Gujarat : : 2005CriLJ4521 which supports the view urged by the State that it is the total weight of the substance recovered and not just the percentage content of heroin translated into weight which has to be taken into consideration for determining whether it is a small quantity or a commercial quantity. On the other hand, the learned counsel for the petitioner submitted that the Supreme Court decision in Amarsingh Ramji Barot (supra) is clearly distinguishable and does not alter the ratio of Ansar Ahmed (supra). A discussion of the said Supreme Court decision and its implication on the ratio in Ansar Ahmed (supra) is, thereforee, necessary.
3. The facts in Amarsingh (supra) were that two persons Amarsingh and Danabhai were apprehended. Amarsingh was found carrying a plastic bag which contained a black-coloured liquid substance weighing 920 gms. Similarly, 4.250 kgs of a grey-colored substance was recovered from Danabhai. Samples were drawn and sent to the Forensic Science Laboratory for testing. The FSL report indicated that the sample from Amarsingh was opium as described in the NDPS Act containing 2.8% anhydride morphine, apart from pieces of poppy (posedoda) flowers found in the sample. The sample relateable to Danabhai was also reported to be opium as described in the NDPS Act having 1.2% anhydride morphine and also containing pieces of poppy flowers (posedoda). Both Amarsingh and Danabhai were charged under Sections 15, 17 and 18 r/w Section 29 of the NDPS Act. The Trial Court found Amarsingh and Danabhai to be in possession (individually and jointly) of 920 gms and 4.250 kgs of opium and convicted them under Sections 17 and 18 read with Section 29 NDPS Act and sentenced them to 5 years RI plus fine of Rs 35,000/- each. Being aggrieved, both Amarsingh and Danabhai filed appeals. The High Court concluded that the conviction under Sections 17 and 18 read with Section 29 was not correct but convicted Amarsingh under Section 21(c) [individually] and under Section 21(c) read with Section 29 [jointly]. The High Court held that the total recovery [920 gms from Amarsingh and 4.250 kgs from Danabhai] constituted a commercial quantity. The High Court went further and held that even if 920 gms alone were to be taken it would amount to a commercial quantity. The High Court sentenced Amarsingh to 10 years RI plus fine of Rs 1 lakh. Being aggrieved, Amarsingh approached the Supreme Court by way of a Special Leave Petition under article 136 of the Constitution.
4. The Supreme Court did not accept the FSL report that the black- coloured liquid substance was opium as described under the NDPS act. Referring to the definition of opium in Section 2(xv)1 of the NDPS Act, it held:-
14. There does not appear to be any acceptable evidence that the black substance found with the appellant was coagulated juice of the opium poppy and any mixture, with or without any neutral material, of the coagulated juice of the opium poppy. FSL has given its opinion that it is opium as described in the NDPS Act. That is not binding on the court.
5. As a result Sections 17 and 18, which relate to opium, became inapplicable. The Court then focused its attention on opium derivatives as defined in Section 2(xvi)2 of the NDPS Act and found that the black-coloured liquid substance recovered from Amarsingh did not fall within the meaning of Sub-clauses (a), (b), (c) or (d) of Section 2(xvi). But that it did fall under the residuary Clause (e) which took in its sweep all preparations containing more than 0.2 per cent of morphine. The Court observed that as the substance, as per the FSL report, had 2.8% anhydride morphine, more than the requisite 0.2%, it would fall within the meaning ascribed to opium derivative and consequently be classed as a manufactured drug as defined in Section 2(xi). Which, in turn, implied that the offence would be covered under Section 21 which related to manufactured drugs as distinct from Sections 17 and 18 which related to opium. The Supreme Court held:-
15. The evidence also does not indicate that the substance recovered from the appellant would fall within the meaning of Sub-clauses (a), (b), (c) or (d) of Section 2(xvi). The residuary Clause (e) would take into its sweep all preparations containing more than 0.2 per cent of morphine. The FSL report proves that the substance recovered from the appellant had 2.8 per cent anhydride morphine. Consequently, it would amount to opium derivative within the meaning of Section 2(xvi)(e). Clause (a) of Section 2(xi) defines the expression manufactured drug as:
2. (xi) manufactured drug means
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) * * *
All opium derivatives fall within the expression manufactured drug as defined in Section 2(xi) of the NDPS Act. Thus, we arrive at the conclusion that what was recovered from the appellant was manufactured drug within the meaning of Section 2(xi) of the NDPS Act. The material on record, thereforee, indicates that the offence proved against the appellant fell clearly within Section 21 of the NDPS Act for illicit possession of manufactured drug.
6. The Supreme Court also found the view of the High Court that there was a criminal conspiracy between Amarsingh and Danabhai to be incorrect. thereforee, Section 29 of the NDPS was not attracted. Consequently, only the recovery of 920 gms was attributable to Amarsingh. The Supreme Court, holding the black- coloured liquid substance to be an opium derivative in its entirety, found that 920 gms of this opium derivative would be a commercial quantity with reference Entry 93 in Notification S.O. No. 1055 (E) dated 19.10.2001 (hereinafter referred to as the said Notification) issued by the Central government in exercise of the powers conferred by Clauses (vii-a) and (xxiii-a) of Section 2 of the NDPS Act specifying small quantities and commercial quantities for different narcotic drugs and psychotropic substances. The Supreme Court concluded:-
17. In respect of opium derivatives (at Sl. No. 93) in the said notification, 5 grams is specified as small quantity and 250 grams as commercial quantity. The High Court was, thereforee, right in finding that the appellant was guilty of unlawful possession of commercial quantity of a manufactured drug. Consequently, his case would be covered by Clause (c) and not Clause (a) or (b) of Section 21 of the NDPS Act.
7. Consequently, the Supreme Court upheld the imposition of the minimum punishment prescribed under Section 21(c) of 10 years rigorous imprisonment together with a fine of Rs lakh. It is pertinent to note that question of a mixture of a narcotic drug (or psychotropic substance) with one or more neutral substances was not at all in issue before the Supreme Court in Amarsingh's case. Whereas the decision in Ansar Ahmed (supra) was specific to such an issue. In Amarsingh's case the entire black-coloured liquid substance was taken as the opium derivative. And, the 2.8% of anhydride morphine was considered only for the purpose of bringing the substance within Section 2(xvi)(e) which required a minimum 0.2% morphine. This anhydride content was not at all considered for the purposes of deciding whether the substance recovered was a small or commercial quantity. Obviously, the Supreme Court proceeded on the footing that the whole substance or in other words the substance in its entirety was an opium derivative and was not mixed with any one or more neutral substances. Moreover, had the Supreme Court considered the content of anhydride morphine alone for the purposes of the said Notification, then Entry 93 would not be applicable. This is so because, Entry 93 itself specifies that it applies to opium derivatives other than diacetyl morphine (heroin), morphine and those listed herein. Thus, it is obvious that the Supreme Court construed the entire substance to be an opium derivative inasmuch as it was a preparation containing more than 0.2 per cent of morphine. And, the percentage content of anhydride morphine was considered for this limited purpose and not for determining the issue of small or commercial quantity. Thus, Amarsingh's case stands on an entirely different footing to Ansar Ahmed's case and to the case at hand.
8. It must also be pointed out that opium yields many derivatives such as morphine, codeine, thebaine, diacetyl morphine (heroin) and their salts. Entry 93, as aforesaid deals with opium derivatives other than diacetyl morphine (heroin), morphine and those listed herein. Diacetyl morphine (heroin) is excluded. It is specifically listed at Entry 56. So is morphine. It is listed at Entry 77. Similarly, codeine and thebaine are listed at Entry 28 and Entry 120 respectively. Their respective small and commercial quantities are 10 gms and 1kg [codeine]; 2 gms and 100 gms [thebaine]. Amarsingh's case was dealt with under Entry 93. Whereas, the case at hand and Ansar Ahmed's case are to be construed in the light of Entry 56. So, the fact situations are different, the narcotic drugs are different, the parameters are different. There is nothing in Amarsingh (supra) which militates against the ratio in Ansar Ahmed (supra).
9. So, going by the ratio of Ansar Ahmed's case (supra), the alleged recovery from the petitioner is, in terms of actual weight, only 25.5 grams of diacetylmorphine. Clearly, Section 37 would not come into play. But, would this in itself be sufficient to entitle the petitioner to the grant of bail
10. While for the purposes of determining whether the quantities are small or commercial or intermediate, only the actual content by weight of diacetylmorphine is to be taken, for considering the question of the gravity of the recovery even when it is of an intermediate quantity, it would be necessary to take into account the purity of the heroin. This would be clear from the discussion below.
11. Diacetylmorphine or heroin was first synthesized from morphine in 1874. Heroin is three times more potent than morphine and pure heroin is a white odourless powder with a bitter taste. However, illicit heroin varies in colour from white to pink to dark brown or even light brown. This variation is due to the source of heroin as well as the impurities left from the manufacturing process or due to the presence of additives. The higher the purity of illicit heroin, the closer it is to the source. Consequently, the higher the purity of heroin, the higher the price for it. Heroin is derived from opium. The largest producers of illicit opium in the world are Afghanistan and Myanmar. The illicit heroin that is found in India is essentially from these sources, some of it, of course, is indigenously produced also. As per the Annual Report 2005 issued by the European Union with regard to the state of the drug problem in Europe, heroin occurs in two forms: the commonly available brown heroin (its Chemical base from) and the less common and more expensive white heroin (a salt form), which typically originates from Sough-East Asia. As per the said report, in 2003, in the European Union, the average street price of brown heroin was reported to vary between EUR 27 per gram and EUR 144 per gram in Sweden, while the price of white heroin ranged from EUR 25 in Slovakia to EUR 216 in Sweden per gram. As per the said report, in 2003, the average purity of brown heroin at street level, in the European Union varied from 6 % in Austria to 40 % in Malta. As regards the white heroin, though only a few countries had reported, the purity at street level ranged on an average from 6% in Finland to 70% in Norway.
12. As per the Office of National Drug Control Policy of the United States of America [National Drug Control Strategy 2000-ONDCP], heroin purity is a reflection of the drugs availability. It is indicated in the said report that unprecedented retail purity and low prices in the United States indicate that heroin is readily accessible. It further indicates that when the drug is hard to find it is cut with other substances. High purity levels may also reflect changes in trafficking patterns. It is indicated in the report that a decrease in the middlemen involved in getting South American and Mexican heroin to customers bypasses mid-level individuals and minimizes cutting and adulteration that historically has reduced heroin purity. As an example, it was noted in the said report that in the Central Florida, which is a High Intensity Drug Trafficking Area, the heroin sampled from past-year seizures indicate purity levels up to 97%.
13. The United Nation's World Drug Report 2005 [Volume 2 Statistics] gives the retail and wholesale prices and purity levels for heroin by region and country or territory. For the United States, the retail price per gram having a purity of 32% in the year 2003 was US 115.8. Insofar as the wholesale price was concerned, it varied from US 34,000 to US 71,000 per kilogram depending on the purity which ranged from 37% to 70%. Insofar as the United Kingdom was concerned, in the same report for the year 2003, the typical retail price per gram of heroin was indicated as US100.2. However, the purity level ranged from 0.1% to 88%. The typical wholesale price for United Kingdom for the same period was indicated as US 34,340.0 and the purity was in the range of 1% to 78%. Insofar as India was concerned, there was no data with regard to purity in the said report either in the retail or wholesale price. However, it was indicated that the typical price per kilogram of heroin in India in the wholesale trade came to US4330. Insofar as Afghanistan is concerned, the purity of retail heroin is around 80% to 95% and so is the purity of wholesale heroin. The typical price in the retail is of US 2.7 per gram and in wholesale, it is US 2730 per kilogram. Similar figures are indicated in the World Drug Report of 2004 published by the United Nations. All these figures go to show that the price of heroin is directly proportional to the purity, meaning thereby that the higher the purity, higher the price. It also gos to show that the more plentiful the heroin, the higher the purity. The purity of the heroin is also an indication of the number of middlemen involved. The fewer the middlemen, the lesser the opportunities of cutting the heroin and adding impurities. This means that if the purity level is high, then there are hardly any middlemen involved. In turn, this implies that a higher purity level is also indicative of the closeness to the source and the lower the purity level, the further down is the point of recovery in the chain of supply of heroin. thereforee, keeping all these factors in mind, one cannot definitely say without looking at the purity levels as to what would be the price of the recovered heroin. However, if one looks at the purity levels of heroin, then one could be certain as to whether it is closer to the source as part of the wholesale trade or at the street level, i.e., at the end of the chain of supply. Very low purity levels indicate that the drug has been cut many times, impurities and additives have been introduced and that a number of middlemen have been involved and the point of recovery is possibly at the fag end of the chain. Recoveries of low purity levels, thereforee, indicate recoveries from the persons who may be at the end of the supply chain or the actual users, i.e., the drug addicts. Recoveries of higher levels of purity would indicate that these are from people higher up in the chain of supply and the highest levels of purity would indicate with some decree of certainty that they are recovered from what we know as kingpins.
14. thereforee, apart from the fact that the actual content by weight would determine whether it is a small quantity, intermediate quantity or commercial quantity for the purposes of the NDPS Act, it would also be necessary to examine the purity levels to come to a conclusion as to whether the recovery is from a person involved in the wholesale trade or in the retail trade or from an addict and all these are to be treated differently under the scheme of the Act. In the present case, I find that the recovery is of a substance which contains only 5.1% heroin which is a fairly low purity level and indicative of the existence of many middlemen and the drug having been cut several times. Compared to the 5.1% purity in the present case, the purity levels available in the U.S. at the retail stage were around 32% and at the wholesale stage, over 60%. This purity level indicates that the recovery is of a substance which is at a point towards and end of the chain, if not the end, thereforee, by a safe estimation, the petitioner could not be classified as a kingpin for whom the stringent provisions under Section 21(c) read with Section 37 of the NDPS Act have been framed. The petitioner has already been in custody for over three and half years, the actual quantity of heroin recovered from him is alleged to be about 25.5 grams. The maximum punishment that can be meted out to him for the intermediate quantity under Section 21(b) of the NDPS Act can be of 10 years with a fine which may extend up to Rs. 1 lakhs. The recovery is about 1/10th of the maximum quantity which falls within the range of intermediate quantities. thereforee, looking at the proportionality, I feel that the petitioner, even if it is assumed that he is to be convicted, would be entitled to be released on bail. Particularly, as he has not antecedent criminal history. Accordingly, the petitioner is directed to be released on bail on furnishing a personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the concerned court/Duty Magistrate.
This application stands disposed of.