Possession of small quantities of contraband under the NDPS Act is a bailable offense, contrary to the general presumption of non-bailability.

ORDER

1. Petitioner has preferred this bail application under Section 439 of Cr.P.C. aggrieved by order of the Court below whereby bail application was rejected.

2. F.I.R. No.159/2019 was registered at Police Station Harnavda Shahji, District Baran for offence under Section 8/27 of NDPS Act.

3. It is contended by counsel for the petitioner that no contraband was recovered and even where recovered contraband is small quantity, it is a bailable offence, petitioner should have been enlarged on bail by the police itself rather Special Judge NDPS Cases has also rejected his bail application.

4. Counsel for the petitioner has placed reliance on Abdul Aziz vs. State of U.P., 2002 CRI. L.J.2913 and Minnie Khadim Ali Kuhn vs. State NCT of Delhi & Ors., Writ Petition (Criminal) No.338/2012 decided by Division Bench of Delhi High Court on 08.05.2012.

5. I have perused the impugned order.

6. Section 37 of the NDPS Act reads as under:-

'Offences to be cognizable and non-bailable:-

(1). Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974)

(a). every offence punishable under this Act shall be cognizable.

(b). no person accused of an offence punishable for [offence under section 19 of section 24 or section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i). the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii). where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2). The limitations on granting of bail specified in clause(b) of sub-section(1) are in addition to the limitations under the Code of Criminal Procedure, 1973(2 of1974) or any other law for the time being inforce, on granting of bail.'

7. Though, in the heading prefixed to Section 37 it is mentioned 'offences to be cognizable and non bailable'. But the section begins with a non-obstante clause notwithstanding anything contained in Cr.P.C. every offence punishable under the Act shall be cognizable. There is nothing in the body to make every offence non-bailable. Apex Court in Frick India Ltd. Vs Union of India, 1990(1) SCC 400, has observed that the headings prefixed to section or entries cannot control the plain words of the provision. They cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous. Nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading of sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision.

8. Para II of Schedule I to Cr.P.C. deals with the offences under other laws. Item No.3 in the list (in Part II of the First Schedule) provides that if the offence concerned(under the other law) is punishable with imprisonment for less than three years, it is bailable and non-cognizable. Now the offence of possession of a small quantity (upto 1 kg) of Ganja, under Section 21 of the NDPS Act, if proved, can lead to a sentence upto six months, and fine. By virtue of Section 37(1) of the NDPS Act, the offence has become cognizable, however, as per Item No.3 in the list(In Part II of the First Schedule) offence is clearly bailable.

9. This court in Hussain vs State of Rajasthan, S.B. Criminal Misc. Bail No.11268/2017 decided on 01.09.2017 held that anticipatory bail is not maintainable where recovered contraband is less than small quantity as the offence is a bailable offence. Division Bench of Delhi High Court has also held in Minnue Khadim Ali Kuhn vs State Nct of Delhi(Supra) that where recovered contraband is small quantity offence is bailable.

10. It is indeed strange that this matter h