Interpretation of the quantity of Charas recovered and its impact on eligibility for bail under the NDPS Act

V.K. Ahuja, J.-This order shall dispose of the application filed by the petitioner under Section 439 of the Code of Criminal Procedure for grant of bail in FIR No.2/09 dated 8.10.2009 registered by Police Station CID, Shimla, under Section 20 of NDPS Act, 1985. A notice of the application was issued to the State.

2. I have heard the learned counsel for the parties and have gone through the report of the police.

3. The submissions made by the learned counsel for the petitioner were that the petitioner and his four accomplices have been arrested for commission of an offence under Section 20 of the NDPS Act. According to the prosecution, on receipt of secret information, the police checked the car in question in which the petitioner and other occupants were traveling and it recovered Charas weighing 3 Kg. and 900 Gms. in all. It was submitted that the quantity recovered can be termed as commercial but in view of the fact that there is a judgment of a Division Bench of this Court that the quantity of resin found in the recovered Charas can only be termed as Charas and since, according to the report of expert the said quantity was only to the extent of 24.46% out of total quantity which comes to less than 1 Kg. and therefore, the quantity was not commercial. The decision in Dharam Pal vs. State of H.P. Latest HLJ 2007 (HP) 827 was relied upon in this regard wherein such observations were made by a Division Bench of this Court while deciding an appeal. Thus, prima facie, from the above decision, it follows that the actual quantity of Charas recovered was less than 1 Kg., or to be more specific 953.94 gms.

4. The learned counsel for the petitioner had also relied upon a decision of this Court in Cr. Misc. Petition (M) No.578 of 2009 Mukesh Kumar vs. State of Himachal Pradesh dated July 23, 2009, wherein it was observed by the learned Single Judge of this Court that if the quantity recovered was less than commercial but more than small quantity, the petitioner was entitled to bail and accordingly bail was granted. It follows from the above discussion that in case the quantity of Charas is less than 1 Kg. bail can be granted by this Court.

5. In view of the above discussion, the bail application is allowed and the petitioner is directed to be released on bail on his furnishing two personal bonds in the sum of Rs.50,000/- each with two local sureties of like amount to the satisfaction of the learned trial Court where the case is pending and subject to the condition that he shall appear regularly before the trial Court during the trial of the case failing which the bail granted to him shall be liable to be cancelled. The bail application is allowed accordingly. Copy be given Dasti.