Bail is a rule and rejection is an exception. Section 37 of the NDPS Act provides limitations on granting bail for offences involving commercial quantity. The court must consider prima facie evidence against the accused and various factors while deciding on bail in a non-bailable offence.

JUDGMENT

1. This petition is filed under Sec. 438 of the Code of Criminal Procedure, 1973, (for short 'Cr.P.C.') seeking to enlarge petitioner on anticipatory bail in the event of his arrest in Crime No.20/2021 of CEN Crime Police Station Kalaburagi City, Dist: Kalaburagi, registered for the offence punishable under Sec. 20 (B), (ii), (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act').

2. It is the case of the prosecution that the FIR came to be registered on the basis of complaint filed by one Waheed Husen Kotwal, Police Officer stating that on 8/10/2021 at about 08.00 a.m. he has received credible information that some persons transporting ganja in a goods vehicle. Hence, he secured the panch witnesses, his staff and went to Tavaragera cross at about 09.00 a.m. At about 10.30 a.m. one Tata Ace Goods Carrier vehicle came from Humnabad towards Kalaburagi. They made hand signal to stop the vehicle, but the driver of the said vehicle without stopping it drove it in high speed. On suspicious they followed the vehicle and stopped near Upalaon cross. The persons sitting front seat ran away from the spot. They found that the driver and two persons were sitting in the vehicle. On enquiry they disclosed their names. On inspection they found 170 ganja packets weighing about 340 kgs worth of Rs.34,00,000.00 and seized the ganja and vehicle by taking sample of ganja for chemical examination. On enquiry the driver stated that accused Mahadev brought ganja from Bhadrachalam of Telengana State and was asked to hand-over the said ganja to Praveen of Kalaburagi. On the basis of complaint the police have started the investigation. This petitioner is absconding. Now the charge sheet is filed stating that this petitioner is absconding. The incident has taken place on 8/10/2021 and he is not appearing before the Court. The anticipatory bail petition filed by the petitioner came to be rejected by the learned Sessions Judge. Hence, the petitioner has filed this petition.

3. Heard Sri. Ganesh Naik, learned counsel for the petitioner and Sri. Gururaj V. Hasilkar, learned High Court Government Pleader for the respondent - State.

4. Learned counsel for the petitioner argued that the petitioner does not have any criminal antecedents. The said ganja seized by the police is not commercial quantity. The petitioner is not the owner of the said vehicle. The charge sheet is filed only on the confession statements of accused Nos.1 and 2, who were caught red-handed. The petitioner is aged about 50 years and suffering from ailments. The petitioner is ready to abide by any conditions that may be imposed by this Court and ready to offer sureties. Hence, learned counsel for the petitioner prays to allow the petition.

5. Against this, the learned High Court Government Pleader argued that seized ganja is commercial quantity. There is bar under Sec. 37 of the NDPS Act to grant bail. His name and mobile number is shown in FIR. This petitioner is transporting ganja from Humnabad to Kalaburagi. The co-accused are granted bail by default. If the petitioner is released on bail, he may tamper the prosecution witnesses and may not cooperate with the investigation. Hence, the learned High Court Government Pleader prayed to reject the petition.

6. I have perused the entire records and documents. Admittedly, the ganja was seized by the police from the possession of the petitioner. The driver of the said vehicle mentioned the name of petitioner. The Sec. 37 of the NDPS Act reads as under:-

"[37. Offences to be cognizable and nonbailable." "(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)," "

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for3[offences under sec. 19 or sec. 24 or sec. 27A and also for offences involving commercial quantity]shall be released on bail or on his own bond unless" "

(i) the Public Prosecutor has been given an opport