The court emphasized that bail is a rule and jail is an exception, particularly when the accused is not charged with a serious offence and has been in custody for an extended period.

ORDER :

1.  RULE. Learned APP waives service of rule for the respondent-State.

2. The present application is filed under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short “BNSS”) for regular bail in connection with FIR being C.R. No.11206020240793 of 2024 registered with Kadi Police Station, District Mahesana for the offences under Sections 8(C), 22(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act.

3. Learned advocate appearing on behalf of the applicant submits that applicant is behind the bars since 18.08.2024 and the applicant is found with intermediate quantity of contraband and therefore, rigors of section 37 of the NDPS Act will not be applicable and even otherwise, charge-sheet is filed and contraband is recovered from the conscious possession of the present applicant. He therefore submits that, considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

4. Learned APP appearing on behalf of the respondent-State has opposed the present application and submitted that applicant is caught red handed with conscious possession of contraband and merely charge-sheet is filed is not a ground to grant regular bail to the present applicant. Hence, he has requested to dismiss the present application for regular bail looking to the nature and gravity of the offence.

5. While granting bail, the Court has to consider the involvement of the accused in the alleged offence, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of her abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.

6. I have heard the learned advocates appearing on behalf of the respective parties and perused the investigation papers. In present case, the investigation is over and charge-sheet has been filed. Following aspects have been considered:

(1) Investigation is over and charge-sheet is filed;

(2) Applicant is caught with conscious possession of intermediate quantity of contraband and therefore, rigors of section 37 of the NDPS Act would not be applicable;

(3) Nothing is required to be recovered or discovered from the present applicant;

(4) None of the offence alleged is punishable with life sentence or death penalty;

(5) Applicant is behind the bars since 18.08.2024;

(6) Decision of Hon’ble Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu reported in (2021) 4 SCC 1

6.1 It is also pertinent to note that the rigors under section 37 of the NDPS Act would be applicable to a person who is involved in offence concerning commercial quantity or charged with an offence under Sections 19, 24 or 27A of the NDPS Act, which is not the case on hand. Therefore, considering overall facts and circumstances of the case and the fact that maximum punishment prescribed under Section 18(c) of the NDPS Act is of 10 years, I am of the opinion that the present application requires consideration.

7. Further, this Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case