The main legal point established in the judgment is that the provisions of Section 37 of the NDPS act, 1985 are crucial in determining the grant of bail in cases involving commercial quantity of narcotics, and the court must consider the limitations under Section 37 while applying Section 439 of the Code of Criminal Procedure.

JUDGMENT

Debangsu Basak, J. - Petitioner seeks bail under Section 439 of the Code of Criminal Procedure in connection with NDPS Case No.23 of 2018 arising out of NCB Crime No.23/NCB/KOL/2018 dated May 17, 2018 under Sections 8(c) read with Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances act, 1985.

2. Learned advocate appearing for the petitioner submits that the petitioner is in custody for more than three and half years. He relies upon the order dated February 7, 2020 passed by the Hon'ble Supreme Court in Criminal appeal No(s).245/2020 (@ SLP(Crl.) No.8823/2019) (Chitta Biswas alias Subhas vs. The State of West Bengal) and submits that the Hon'ble Supreme Court granted bail to a person found in possession of narcotic substance of commercial quantity. He submits that in Chitta Biswas alias Subhas (supra), the Hon'ble High Court rejected the prayer for bail by an order dated July 30, 2019 passed in CRM 6787 of 2019 after discussing the applicability of Section 37 of the NDPS act, 1985 to the facts of that case. In fact, the Hon'ble High Court rejected the prayer for grant of an anticipatory bail on the ground that commercial quantity of narcotics was seized from the joint possession of the petitioner and the co-accused and in view of the statutory restrictions of Section 37 of the NDPS act, 1985. He relies upon the order dated October 19, 2020 passed in CRM 8187 of 2020 (In the matter of: Shovon Nandi @ Mantu) and submits that a coordinate Bench after noticing Chitta Biswas alias Subhas (supra), was pleased to grant bail to the petitioner therein although being found in possession of commercial quantity of codeine mixture.

3. Learned additional Solicitor General appearing for the Union of India submits that 700 bottles of phensedyl was seized from the possession of the petitioner and the same is commercial quantity of narcotics within the meaning of the NDPS act, 1985. He relies upon 2021 SCC Online Cal 2690 (Sonu ansari vs. State of West Bengal) and submits that, Chitta Biswas alias Subhas (supra) was considered by the High Court and in the facts of that case the prayer for bail was denied. He submits that discussions with regard to Section 37 of the NDPS act, 1985 are mandatory when proceedings involve the provisions of the NDPS act, for the purpose of considering a prayer for bail of an accused. In support of such contention, he relies upon (2018) 13 Supreme Court Cases 813 (Satpal Singh vs. State of Punjab) and (2020) 12 Supreme Court Cases 122 (State of Kerala & Ors. Vs. Rajesh & Ors).

4. In the facts of the present case, the petitioner was arrested and commercial quantity of phensedyl was seized from him. The provisions of Section 37 of the NDPS act, 1985 are attracted in the facts of the present case. In Chitta Biswas alias Subhas (supra), the Hon'ble Supreme Court granted bail to the accused. However, the Hon'ble Supreme Court did not discuss the provisions of Section 37 of the NDPS act, 1985 therein.

5. Chitta Biswas alias Subhas (supra) was noted in CRM 8187 of 2020 (In the matter of: Shovon Nandi @ Mantu) and the bail was granted. Section 37 of the NDPS act, 1985 is not discussed in Shovon Nandi @ Mantu (supra).

6. a three Judge Bench of the Hon'ble Supreme Court in Satpal Singh (supra) is of the following view:

'14. Be that as it may, the order dated 21-92017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 CrPC without reference to Section 37 of the NDPS act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21-9-2017 is only to be set aside and we do so.'

7. In Rajesh and Others (supra) the Hon'ble Supreme Court noted various authorities on th