11.09.2025 SL No.1 Ct. No.03 Sudipta Calcutta High Court In The Circuit Bench at Jalpaiguri CRM (NDPS) 395 of 2025 In Re: An application for Bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in connection with PTN (NDPS) case no. 04 of 2025 arising out of Bhaktinagar Police Station case no. 1190 of 2024 dated 27.12.2024 under Sections 21(c) / 22(c) of NDPS Act. And In Re : Mahendra Roy @ Aatia ……Petitioner For the petitioner : Mr. Sourav Ganguly Mr. Bibek Tarafdar Mr. Gopal Roy Ms. Rishita Chakraborty Mr. Bibhash Kr. Nandi …..Advocate For the State : Mr. Aditi Shankar Chakraborty Mr. Aniruddha Biswas …..Advocates 1. I.C. and I.O. of Bhaktinagar Police Station have appeared in person in terms of order dated 10th September, 2025. Further personal appearance of I.C. 2 and I.O. of Bhaktinagar Police Station are dispensed with. 2. Learned counsel for the State on instructions states that the quantity recovered from the possession of the accused is commercial quantity. Learned counsel has referred to a table annexed to the NDPS Act and in particular note 4 of the said notification. The said note 4 of is set out hereinbelow: “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.” 3. Per contra, learned counsel for the petitioner has vehemently argued that the drugs allegedly recovered from the possession of the accused is a small quantity. Learned counsel submits that there is a formula of converting ml into gram which is (Weight = Volume X Density). Learned counsel submits that in the present case 80 ml of substance was recovered which is multiplied by 0.0003 g/ml comes to 0.024g. Learned counsel further relied upon Salam Vs. Union of India reported in 2007 SCC OnLine Ker 582, Sarabjeet Singh @ Sabu Vs. State of Punjab in CRM-M- 3 11744-2022 and also in Ouseph alias Thankachan Vs. State of Kerala reported in (2004) 4 SCC 446. Learned counsel submits that it is a clear case of lapse on the part of the prosecution. 4. In Salam (supra) case, the Kerala High Court in the writ jurisdiction was considering the question that what is commercial quantity of Buprenorphine Tidigesic for the purpose of incriminating under the NDPS Act, 1985. The Kerala High Court after taking into account the affidavit filed by the Union of India, inter alia, held as under : “4.It is not in dispute that it is necessary that small quantity and commercial quantity of buprenorphine tidegisic is fixed in milliliters considering the liquid form of the substance. The Government have relied on Indian Pharmacopoeia 1996 and taken the stand that 1 gram of buprenorphine corresponds to 3333.33 milliliters and 20 grams corresponds to 66666.60 milliliters. Ultimately Mr. Mathai Muthirenthy also submitted that it will suffice, if the above stand of the first respondent taken on the basis of Indian Pharmacopoeia 1996 be given the fiat of the court.” This judgment was followed by the Punjab and Haryana High Court in Sarabjeet Singh @ Sabu (supra). In that case also the accused was allegedly found in possession of 12 injections of Dizepam of 2ml each which makes it 24 ml. 5. Punjab and Haryana High Court taking into account the judgment of Salam (supra) of Kerala High court, 4 inter alia, held that the quantity recovered from the petitioner cannot be treated as commercial and thus Section 37 of the NDPS Act will not be attracted. 6. In Ouseph alias Thankachan Vs. State of Kerala also incidentally the substance recoverd was the same. In that case 110 ampoules of injections were recovered. The Apex Court taking into account the submissions, inter alia, held as under: “8. The question to be considered by us is whether the psychotropic substance was vin a small quantity and if so, whether it was intended for personal consumption. The words "small quantity" have been specified by the Central Government by the notification dated 23-7-1996. Learned counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each ampoule contained only 2 ml and each mi contains only .3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification.” 7. Admittedly, in the present case 40 pieces of vials of Buprenorphine IP 0.3 ampoules were recovered making total 80 ml. 8. Learned counsel for the State has fairly submitted that another substance of diazepam injections is of the small quantity. 5 9. The petitioner is stated to be in custody for the last 257 days. The charges have not been framed. In view of the legal position as being canvassed by the learned counsel for the petitioner, the Court considers that whether the accused was found in possession of commercial quantity or small quantity is to be determined by the learned Trial Court at the stage of charge after taking into account the factual position as being placed by both the parties. However, since the Courts will be closing down soon due to puja vacation, the Court considers in the interest of justice that the petitioner is admitted to interim bail on furnishing personal bond of Rs.10,000/- with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Special Judge, under NDPS Act, Jalpaiguri and subject to the condition that the petitioner shall not leave the jurisdiction of Bhaktinagar Police Station till the period of interim bail and shall report to the Investigating Officer on every Friday at 4:00 p.m. 10. The interim bail shall be till 30th November, 2025. 11. During this period, the learned Trial Court shall decide the issue on charge. 12. Copy of this order be sent to the learned Special Judge, under NDPS Act, Jalpaiguri. 6 13. Let the matter be placed before the next available Circuit Bench. ( Dinesh Kumar Sharma, J. )