Section 37 of the NDPS Act imposes restrictions on the grant of bail in cases involving commercial quantity. The principle of parity applies when the accused and the co-accused are involved in the same crime in a similar manner.

JUDGMENT :

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. A. Ahmed, learned counsel for the accused-petitioner and Mr. K.K. Parasar, learned Additional Public Prosecutor for the respondent State of Assam.

2. By this application filed under Section 439, Code of Criminal Procedure, 1973 ['CrPC' and/or 'the Code', for short], the accused-petitioner viz. Kazi Shihab Uddin @ Shihab Uddin Kazi @ Md. Sahibuddin Kazi has prayed for his release on bail in connection with NDPS Case no. 36/2021, arising out of Gorchuk Police Station Case no. 751/2020 registered for offences punishable under Sections 21[C]/29 of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985.

3. The accused-petitioner after arrest, was produced before the Court of learned Chief Judicial Magistrate, Kamrup [M], Guwahati on 23.12.2020 and since then he is in custody. The Investigating Officer of the case after completing the investigation in connection with Gorchuk Police Station Case no. 751/2020, had submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 84/2021 dated 31.05.2021. After submission of charge sheet, the case has been registered as NDPS Case no. 36/2021.

4. Mr. Choudhury, learned Senior Counsel for the accused-petitioner has submitted that as per the First Information Report [FIR] dated 22.12.2020 and the forwarding report dated 23.12.2020, alleged contraband substance were recovered from the possession of both the accused persons. He has submitted that the charge sheet was submitted on 31.05.2021. It was prior to the submission of the charge sheet, the other arrested accused person viz. Md. Suwail Ahmed, also arrested on 23.12.2020, was released on bail by an order dated 18.01.2021. But the accused-petitioner is still in custody since 23.12.2020. It is his submission that the accused-petitioner may also be released on the ground of parity subject to any terms and conditions. The accused-petitioner will abide by any such terms and conditions to stand the trial. He has placed reliance in the decision of the Hon'ble Supreme Court of India in Ajmer Singh vs. State of Haryana, reported in [2010] 3 SCC 746.

5. Mr. Parasar, learned Additional Public Prosecutor has submitted that from the materials on record, it is evident that other accused person and the present accused-petitioner are not similarly situated and, as such, release of the accused-petitioner on bail, on the ground of parity, is not sustainable. The prayer for bail is to be considered keeping in view the restrictions imposed in the NDPS Act, 1985.

6. The scanned copies of the case record of NDPS Case no. 36/2021 and the concerned case diary were requisitioned from the Court of learned Special Court [Court of learned Additional Sessions Judge no. II], Kamrup [M], Guwahati by an order dated 23.12.2021 and the same have been received.

7. I have considered the submissions of the learned counsel for the parties and have also perused the materials available in the case record of the NDPS Case no. 36/2021 and the concerned case diary.

8. The FIR was lodged by a Sub-Inspector of Police attached to Gorchuk Police Station and In-Charge, ISBT Outpost on 22.12.2020. As per the FIR, the informant received a confidential output from the Crime Branch, Guwahati at around 04-00 p.m. on 22.12.2020 to the effect that there were illegal peddling/transportation of drugs at the ISBT campus. Accordingly, a general diary entry being General Diary Entry no. 427 dated 22.12.2020 was registered. Thereafter, a team of police personnel including the informant, proceeded to the ISBT complex to carry out search operation therein. During the search operation, the accused-petitioner was found inside a bus bearing registration no. AS-10/C-6456 which was parked at Bay no. 24 within the ISBT complex. When intercepted, the accused-petitioner was found carrying a bag. The bus had come from Karimganj. When the accused-petitioner was searched, 30 nos. of soap cases of different colours conta