The main legal point established in the judgment is the mandatory nature of Section 37 of the NDPS Act, which imposes specific conditions for granting bail in cases involving commercial quantity of contraband.

JUDGMENT :

ANOOP CHITKARA, J.

1. The present petition is under Section 438 of the Code of Criminal Procedure, seeking anticipatory bail in FIR No. 32 of 2019 dated 04.03.2019 registered at Police Station Chowari, District Chamba, H.P. under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (from now on referred to as the Act).

2. The case of the petitioner is that the police has arraigned him as an accused in F.I.R. No. 32 of 2019 registered against him under Section 20 of the NDPS Act at Police Station Chowari, District Chamba. Learned counsel appearing for the bail petitioner contends that the petitioner is a student of final year and on 3rd March, 2019 after visiting his native village he was going to Baddi to appear in an examination, scheduled for 5th March, 2019. He boarded the bus bound from Chamba to Shimla and got a confirmed ticket to Nalagarh and allotted seat No. 29. At Tunuhatti Barrier police checked the bus, and as per the case of the prosecution the charas was found, and police seized the same. After that, the cops fastened its liability on the accused. The learned counsel for the petitioner submitted that the bail petitioner is a student, and his incarceration will affect his studies. The counsel further submitted that the police had recovered the charas from the roof of the bus. However, later on, the accused was fastened with the liability, whereas he has nothing to do with the said contraband.

3. The quantity of charas, which the Police seized, is not mentioned in the bail petition. However, Learned counsel for the bail petitioner contends that the amount of charas involved is greater than 1 kilogram. The Notification, issued under Section 2(vii) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances, mentions charas at Sr. No. 23. If the weight of chars is greater than 1 kilogram than it shall fall in the commercial quantity. As such, the rigors of Section 37 of the NDPS Act shall apply in the present case. Resultantly, the present case is not at par with any other instance of the grant of bail in a penal offence.

4. I have heard Shri Ashwani Kumar Sharma and Shri Nand Lal Thakur, Additional Advocate Generals, for the State. Both of them have vehemently opposes the petition for grant of bail to the accused.

5. I have also gone through the bail petition. In the petition it is nowhere pleaded by the accused that police is going to arrest the accused because of some hostility or as a part of a conspiracy. The learned counsel has argued that the police had recovered a bag from the roof of the bus and in that bag, police recovered the identity card of the accused. On this basis, the investigating officer is likely to arrest the bail petitioner and fastened him with criminal liability. Even if all these submissions are accepted to be accurate, still this Court can release a person/accused for committing an offence punishable under the NDPS Act to possess commercial quantity of contraband, on clearance of the rigors contained in Section 37 of the Act. Section 37 of the Act is extracted as under:-

"37. 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 2[offences under section 19 or section 24 or section 27A 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 C