The discretion of the judge in granting bail and the need for judicious and humane exercise of such discretion.

JUDGMENT

Anoop Chitkara, J. - For purchasing 14.20 grams of Heroin with the co-accused Sahil Bhardwaj who was arrested for possessing the same, and petitioner is now apprehending imminent arrest on being arraigned as an accused, has come up under section 438 CrPC, seeking anticipatory bail.

2. Based on the complaint of Sanjeev Kumar, Incharge SIU Solan, the police registered FIR No. 79 of 2020, dated 7.10.2020, under Sections 21 and 27A of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short NDPS Act), in Police Station Kandaghat, Distt. Solan, Himachal Pradesh, disclosing cognizable and nonbailable offences.

3. The petitioner's criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years: The contents of the petition and the status report do not reveal any criminal history.

4. Briefly, the allegations against the petitioner are that on 7.10.2020 at about 5.20 p.m., a team of SIU Solan was present at Waknaghat Bazar when it received a secret information that one person was selling heroin/chitta from his car near the main gate of Bahra University. On this information, after associating an independent witness, the said person was apprehended who revealed his name as Sahil Bhardwaj and from his car recovered 14.20 grams of heroin. During interrogation of said Sahil Bhardwaj, he revealed that he alongwith Vaibhav Sharma, petitioner herein, had gone to Delhi from where they had purchased the contraband from two persons (Nigro).

5. The Counsel for the petitioner seeks bail and contends that the accused is innocent.

6. The contention on behalf of the State is that if this Court grants bail, such order must be subject to conditions, especially of not repeating the criminal activities.

ANALYSIS AND REASONING:

7. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. S. 2 (xxiii-a) defines a small quantity as the quantity less than the quantity specified in the table of the 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. The contraband involved is prima facie is not a Commercial quantity. As such, the rigors of Section 37 of the NDPS Act shall not apply in the present case. Resultantly, the present case is similar to other instances of the grant of bail in a penal offence.

9. In intermediate quantity the rigors of the provisions of Section 37 may not be justified- ( Sami Ullaha v. Superintendent Narcotic Control Bureau, (2008) 16 SCC 471 ). In the present case, the quantity of substance seized is less than the commercial quantity. Therefore, the bail application stands on different parameters and is similar to bail petitions under regular statutes.

10. In Gurbaksh Singh Sibbia and others v. State of Punjab, (1980) 2 SCC 565 , (Para 30), a Constitutional bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2005) 2 SCC 42 , (Para 18) a three-member bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a