The court emphasized the impact of the quantity of the drug involved and the petitioner's criminal history on the bail decision.

JUDGMENT

Anoop Chitkara, J. - For possessing 6.14 grams of heroin, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 223 of 2019, dated Dec 12, 2019, registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in the file of Police Station Indora, Distt. Kangra,, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.

2. Status report stands filed. I have seen the status report(s) as well as the Police file, to the extent it was necessary for deciding the present petition, and heard learned Counsel for the parties.

3. Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC, before Special Judge-II, Kangra at Dharamshala, HP. However, vide order dated Jan 21, 2020, the Court dismissed the petition.

FACTS

4. The gist of the First Information Report and the investigation is that on Dec 12, 2019, police party was present within the jurisdiction of Police Station Indora to conduct crime and for the purpose of patrolling. At about 3.50 p.m., at Meelwan the police party met Lady Constable Rashmi and while they were talking to her in the meantime one lady was noticed coming on a scooty, who on seeking the police officials stopped and started reversing the same. Police found such conduct of the said lady as suspicious. On this Head Constable Vipan Kumar signalled LC Rashmi to nab that lady and within few steps the Lady Constable was able to nab the said lady. On inquiry, the lady revealed her name as Rozy alias Seema, petitioner herein. After that the police conveyed to her that they are suspicious of her selling narcotic substance. She was asked to open the dickey of the scooty from which police recovered a small transparent polythene packet which contained white coloured substance. The recovered substance on checking from the Drug Detection Kit tested positive for Heroin and upon weighment found to be 6.14 grams. Subsequently, the police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner.

PREVIOUS CRIMINAL HISTORY

5. The following cases are pending against the bail petitioner:

1. FIR No. 02 of 2017 dated Jan 2, 2017, under Section 21 of the NDPS Act, Police Station Indora, Distt. Kangra, HP.

2. FIR No. 215 of 2018, dated Aug 13, 2018, under Section 21 of the NDPS Act, Police Station Indora, Distt. Kangra, HP.

ANALYSIS AND REASONING:

6. Pre-Trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.

7. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.

8. Although the substance recovered from the petitioner is just 6.14 grams and very close to small quantity but keeping in view the criminal history, the petitioner is taking undue advantage of the bail already granted to her. While granting bail in earlier FIR, the learned Special Judge did not caution the bail petitioner that in case she repeats the offence then bail granted would ca