The rigour of section 37 of NDPS Act is not applicable in cases where the quantity of contraband recovered is an intermediate quantity.

JUDGMENT

1. The present bail application is filed on behalf of the petitioner/applicant under section 439 Cr.P.C. read with section 36A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") for grant of regular bail in FIR bearing no.0051/2023 registered under sections 20/25 of NDPS Act at P.S. Crime Branch.

2. The perusal of FIR bearing no.0051/2023 dated 27.02.2023 registered under sections 20/25 of the NDPS Act reflects that SI Naresh Kumar on receipt of secret information on 27.02.2023 at around 02:50 P.M. apprehended the petitioner/applicant Mohd. Farman, resident of Gautum Puri, Shastri Park, Delhi, who was stated to be indulged in the supply of charas in Delhi, when he came near Rohini between 03:45 P.M. to 04:15 P.M. to deliver charas to someone in front of City Centre Mall under construction MCD Parking, Prashant Vihar. The secret information was reduced to writing for compliance of section 42 of NDPS Act and thereafter a raiding party was prepared on the direction of senior officers. The raiding party proceeded towards the informed place along with necessary equipments and secret informer and reached there at around 03:40 P.M. The public persons refused to join raiding party, despite request, after citing their difficulties. At about 03:50 P.M., one person came from the side of Unity One Mall, Rohini and parked his cherry coloured scooty bearing registration no. DL 5 SCM 1394 and was carrying a red bag in his hand. He was identified as Mohd. Farman i.e. the petitioner/applicant. The raiding party apprehended him. Notice under section 50 of NDPS Act was also given to him. The petitioner/applicant was found in possession of 500 grams of charas.

3. The petitioner/applicant filed a bail application before the Sessions Court in SC no.262/2023 which was dismissed vide order dated 15.07.2023 passed by the court of Sh. Dhirendra Rana, ASJ/Special Judge (NDPS), North, Rohini Courts, Delhi.

4. The counsel appearing on behalf of the petitioner/applicant argued that the petitioner/applicant is in judicial custody since 28.02.2023. He stated that after conclusion of investigation, the charge-sheet has already been filed. He further argued that the quantity of charas recovered from the petitioner/applicant is 500 grams which is an intermediate quantity i.e. more than small quantity but less than commercial quantity. The counsel for the petitioner/applicant seeks the grant of regular bail to the petitioner/applicant on the ground that the rigour of section 37 of NDPS Act is not applicable in cases where the quantity of contraband recovered is an intermediate quantity. The counsel appearing on behalf of the petitioner/applicant cited the decisions of Coordinate Benches of this Court which are Anita v State (NCT of Delhi), Bail Application no. 1538/2022 decided on 20.07.2022; Sunil v The State of NCT of Delhi, Bail Application no. 495/2022 decided on 28.07.2022; Rehmatullah @ Arman v State of Delhi, Bail Application no. 2866/2022 decided on 24.11.2022; Narsimman v State (Govt. of NCT of Delhi), Bail Application no.3863/2022 decided on 09.02.2023; Gajender Bahadur v The State Govt of NCT of Delhi, Bail Application no. 3655/2022 decided on 31.01.2023.

5. The Additional Public Prosecutor appearing on behalf of the respondent/State argued that the co-accused persons namely Shahin and Yameen were found in possession of 500 grams of charas each, as such the total quantity of contraband recovered from all the accused persons comes within the category of commercial quantity and in view of this fact, the petitioner/applicant is not entitled for bail.

6. The argument advanced by the Additional Public Prosecutor is without any basis in view of the order dated 20.07.2022 passed by Coordinate Bench of this Court in Anita v State (NCT of Delhi), Bail Application no. 1538/2022, wherein it was observed as under:

3. He further draws my attention to another judgment of the Coordinate Bench pass