BADAR DURREZ AHMED, J.

( 1 ) THIS application for bail was argued at length. The allegation against the petitioner is that he was carrying three bags one on each shoulder and one held in his right hand and each of these bags is alleged to have contained Indian Hemp (ganja ). The alleged contents of the bags were of 7. 5 kg. , 7. 5 kg and 7 kg of ganja totalling 22 kg which is above the commercial quantity of 20 kg prescribed under the Narcotic drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS act ). As such, on the basis of the allegations made in the FIR, the case would fall under Section 37 of the NDPS Act.

( 2 ) THE learned counsel for the petitioner pointed out that the factum of recovery of the alleged quantity of ganja is itself in doubt. He firstly submitted that there were no public witnesses although the recovery is said to have been made on a public road in the afternoon. Secondly, he submits, with a great deal of vehemence, that the samples said to have been collected and marked as S-12, S-25 and S-34 as indicated in the FIR were of 600 gms each specifically. However, the Forensic science Laboratory report clearly indicated that the samples S-12, S-25 and S-34 contained Indian Hemp (ganja) in the quantities of 630 gms, 560 gms and 750 gms respectively. The contention of the learned counsel for the petitioner is that not only does the total quantity differ, the difference in each of the samples is also substantial. Furthermore, he submits that this could not be regarded as a discrepancy attributable to differences in weighing scales inasmuch as if that had been the case, then the discrepancies in the weights would have been uniform in the sense that the weights would have been more or less in all the samples and not greater in some and less in others. The learned counsel for the petitioner further submitted that the seals were intact as indicated in the FSL report itself, a copy of which is placed at page 24 which reads Seals Intact as per F. A s Letter. The learned counsel for the petitioner also made a submission that the entire quantity that is alleged to have been recovered cannot construed as Ganja inasmuch as the definition of Ganja in Section 2 (iii) (b) specifically excludes the seeds and leaves when not accompanied by the tops. However, this last point was not stressed much at this stage for grant of bail.

( 3 ) THE learned counsel for the petitioner placed reliance on a decision of the Supreme Court in the case of Rajesh Jagdamba Avasthi v State of Goa reported in 2005 (1) Apex Criminal Judgment 240. The learned counsel for the petitioner submitted that in that case, because of, inter alia, discrepancies in the amounts seized and those sent to the Junior Scientific Officer, the court found that there were enough doubts and it would be unsafe to sustain a conviction on that basis. Accordingly, the discrepancy resulted in the acquittal of the accused in that case. Taking strength from that decision, the learned counsel for the petitioner submitted that in the present case, there was a clear discrepancy and this discrepancy created enough doubts and would certainly fall within the parameters of Section 37 which requires the existence of reasonable grounds of the offence not having been made out before an order of releasing the person on bail can be passed by the court.

( 4 ) MR Dudeja, the learned counsel for the State vehemently opposed the grant of bail on the ground that the alleged recovery is of a commercial quantity specified under the NDPS Act. He submitted that the rigours of Section 37 would apply and, therefore, the petitioner was not entitled to bail at this stage. As regards the discrepancy in the weights of the samples sent by the police station and received by the FSL, he submitted that the same could be explained with respect to differences in weighing scales. He submitted that, that would be a matter for consideration at the stage of trial of the case where the p

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