ORDER

The present application i.e. Cr. Misc. No. 15800 of 2025 was filed for grant of bail to the petitioner in connection with Muffasil P.S. Case No. 13 of 2025 registered for the offences under Section 8(B) and 21(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘N.D.P.S. Act’). In the present case, 0.19 gram smack and 6.56 gram ganja were recovered which admittedly fall under the ambit of small quantity but F.I.R. was registered under Section 21(c) of the N.D.P.S. Act, although it ought to have been registered under Section 21(a) of the N.D.P.S. Act as recovery is below small quantity. Prima facie, this Court was of the view that offence under Section 21(a) of the N.D.P.S. Act is bailable in nature, as such, the petitioner ought to have been granted bail by police itself, however, petitioner was not granted bail by the police and the learned Sessions Judge has also rejected the bail of the petitioner. Thus, this Court vide order dated 20.03.2025 granted bail to the petitioner but for better appreciation of provisions of law, posted the matter for today. Later, Cr. Misc. No. 18113 of 2025, which is similar to the present matter, was also directed to be listed along with Cr. Misc. No. 15800 of 2025 for today.

2. Earlier vide order dated 20.03.2025, Mrs. Vaishnavi Singh was appointed as Amicus Curiae to assist this Court.

3. In both these cases, the recovery is below the small quantity but for the sake of convenience, this Court would take facts from Cr. Misc. No. 15800 of 2025.

4. Heard learned Amicus Curiae and learned APPs for the State.

5. The prosecution allegation is that total 0.19 gram smack and 6.56 gram ganja were recovered out of which 1.57 gram ganja along with one mobile was recovered from the petitioner while 0.19 gram smack and 4.99 gram ganja were recovered from co-accused Vishnu Kumar.

6. Learned Amicus Curiae submits that since the recovery in the instant case is below small quantity, the F.I.R. ought to have been registered under Section 21(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘N.D.P.S. Act’) instead of Section 21(c) of the Act. She further contends that the title of Section 37 of the N.D.P.S. Act states that "offences are to be cognizable and non-bailable", but it does not mention all offences. The deliberate omission of the word "all" in the title indicates the legislature's intent. Within the section itself, the word "every" appears in clause (1)(a), and its placement is purposeful. The N.D.P.S. Act classifies offences and prescribes punishments based on the quantity of narcotic drugs or psychotropic substances involved – small, intermediate, and commercial quantities. If the legislature had intended to make all offences non-bailable, it would have clearly stated so in the title itself. The absence of such wording suggests otherwise. She further submits that making all offences non-bailable would defeat the very purpose of this quantity-based classification. For instance, equating possession of a small quantity (possibly for personal use) with possession of a commercial quantity would lead to the same harsh consequences, prolonged incarceration regardless of the severity or context of the offence. This approach would undermine the rehabilitative intent of the law, particularly for users, addicts, or those found in possession of small quantities. Sections 39 and 64A of the NDPS Act provide a legal foundation for prioritizing treatment over punishment, highlighting the need to reform implementation practices and place greater emphasis on de-addiction and rehabilitation. The legislature appears to have carefully crafted Section 37 to reflect a distinction. While it explicitly states that all offences are cognizable, it does not similarly declare that all offences are non-bailable. This selective usage clearly shows a legislative intent to exclude certain categories – especially minor offences – from being treated as non-bailable. Thus, the omission of the t