The main legal point established in the judgment is the determination of contraband quantity and the applicability of Section 37 of the NDPS Act in bail applications.

VIVEK SINGH THAKUR, J.

1. The present petition has been filed seeking regular bail in case FIR No. 97/18, dated 06.11.2018, at Police Station Kandaghat, under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substance Act (in short “NDPS Act”), petitioner is in custody since 6.11.2018.

2. Status report stands filed and record has been produced, perusal whereof indicates that on 6.11.2018, during traffic checking, Head Constable Bhupender along with police party, at about 4.45 P.M., had stopped vehicle bearing No. HP13-5118 ALTO 800, coming from Shimla side. The vehicle was being driven by present petitioner, who was accompanied by one Manoj Kumar sitting on the front seat of left side. During checking of the vehicle, a carry bag was found on the seat on which Manoj Kumar was sitting, wherefrom 1kg 505 gm Charas was recovered. During inquiry, Dilbar Singh (petitioner) and Manoj Kumar (co-accused), disclosed that they had purchased contraband from an unknown Nepali at Theog Bus stand and they were intending to earn profit by selling it further.

3. On recovery of the contraband, the same was seized by completing the codal formalities and a rukka was sent to the SHO, Police Station with a request to register FIR and appoint some another investigating officer for further investigation. On the basis of rukka, FIR was registered and the further investigation was handed over to Sub Inspector Rajinder Singh, who completed the remaining part of investigation and challan is likely to be presented in the Court within very short time. It is further stated in the status report that since 9th November, 2018, after remaining in the police custody, the petitioner is in judicial custody.

4. Learned counsel for the petitioner has contended that even if, the prosecution case is considered to be true in toto, then also, the recovered charas cannot be held to be of commercial quantity as in the chemical analysis report, received from the State FSL, quantity of purified resin has been found to be 31.06% w/w and, therefore, alleged recovered contraband becomes to about 467 gms and the said quantity, though, is greater than small quantity, but is far less from commercial quantity, and, therefore, rigors of Section 37 of NDPS, Act are not applicable in the present case and the petitioner, therefore, is entitled to be enlarged for bail. Learned counsel for the petitioner has further submitted that on the basis of percentage of purified resin reported in chemical analysis report, the Coordinate Bench of this Court in enormous cases has enlarged the accused therein on bail and he has also placed on reliance judgments passed by the Coordinate Bench in Cr.MP(M) No.1328 of 2018, titled as Jaswant Singh v. State of H.P., decided on 25.10.2018, Cr.MP(M) No.1505 of 2018, titled as Sewak Ram vs. State of H.P., decided on 22.11.2018, Cr.MP(M) No.1625 of 2018, titled as Narayan Singh vs. State of H.P. decided on 20.12.2018, Cr.MP(M) Nos. 1777 & 1778 of 2018, titled as Besati Devi vs. State of H.P. and Pawan Kumar vs. State of H.P. decided on 27.12.2018 and Cr.MP(M) No.1765 of 2018, titled as Nageshwar Dipta vs. State of H.P., decided on 28.12.2018, wherein, petitioners therein, were enlarged on bail by considering quantity of recovered contraband as intermediate quantity on the basis of percentage of the purified resin reported by State FSL after chemical analysis of contraband.

5. It is canvassed by learned counsel for the petitioner that a view, taken by the Coordinate Bench consistently, is required to be followed to maintain the judicial proprietary as bail is being granted to some persons in the similar facts and circumstances, by passing elaborate judgments by the Coordinate Bench and, therefore, the petitioner is also entitled for grant of bail to the similar analogy.

6. It is further contended that, even otherwise, Section 37 does not create an absolute bar in granting bail in case of recovery of commercial quantity of contraband from a person and