The discretion to grant bail under the NDPS Act should be exercised judiciously, considering the impact on society and the cumulative effect of facts.

JUDGMENT

Vivek Singh Thakur, J. - Both petitions are being disposed of by this common judgment, as they arise out of the same FIR.

2. Petitioners have approached this Court seeking regular bail in case FIR No. 6 of 2021, dated 10.01.2021, registered in Police Station Padhar, District Mandi, under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act).

3. Status report(s) stand filed. Petitioners have also placed on record copy of challan and other documents on record. Petitioners have been arrested on 10th January, 2021 and after remaining in police custody, they are in judicial custody.

4. In status report, details of circumstances, in which charas weighing approximate one Kilogram has been recovered from petitioners, have been narrated. Petitioners had approached learned Special Judge-III, Mandi seeking regular bail by filing separate petitions, which stand dismissed on 30th April, 2021.

5. It is submitted on behalf of petitioners that learned Special Judge has committed a mistake by treating the recovered contraband of commercial quantity, alleged to have been recovered from petitioners. On the basis of report of State FSL Junga, he submits that weight of recovered contraband along with carrying bag has been found to be more than 1 Kg., but, without envelope, the weight of contraband has been found 979 grams, which is less than commercial quantity and therefore, learned Special Judge has wrongly invoked rigors of Section 37 of NDPS Act.

6. Learned counsel for the petitioner has further submitted that rule is bail, but, not jail as it is trite law that personal liberty cannot be taken away except in accordance with procedure established by law as personal liberty is a constitutional guarantee. Further that object of jail is to secure the appearance of accused person during trial by reasonable amount of bail and object of bail is neither punitive nor preventative and deprivation of liberty must be considered a punishment, unless it is required to ensure presence of an accused in his trial. Learned counsel has further submitted that there is possibility of delay in concluding the trial and, therefore, it is contended that there is no reason to deny the bail to the petitioners, rather, petitioners deserve to be enlarged on bail. To substantiate the plea taken on behalf of petitioners, seeking their enlargement on bail, learned counsel has relied upon judgments of Supreme Court in Gurubaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 ; Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav, (2005) AIR SC 921 ; Sanjay Chandra vs. Central Bureau of Investigation, (2012) AIR SC 830 ; and State of Kerala vs Raneef, (2011) AIR SC 340 .

7. Learned counsel for the petitioner has also relied upon two other judgments passed by Coordinate Benches of this Court in cases Cr.MP(M) No. 603 of 2020, titled as Gokul Chand vs. State of HP and Cr.MP(M) No. 925 of 2021, titled Durga Singh vs. State of HP. He further submits that in Gokul Chand's case the accused for alleged possession of 989 grams of charas has been enlarged on bail and in Durga Singh's case, the accused in a case of recovery of 954 grams, of charas has been granted anticipatory bail.

8. Learned Additional Advocate General has submitted that though bail is rule and jail is exception, but, at the same time the Court cannot shut its eyes from prevailing menace of drug abuse. He further submits that though, technically, recovered contraband is less than commercial quantity, however, it is nearest to commercial quantity. He further submits that though Section 37 of NDPS Act may not be attracted, but, for betterment of society and larger interest of public, petitioners are not entitled for bail for commission of heinous crime which is not only against State, but, also the interest of society at large. Therefore, he has pleaded for dismissal of bail petitions.

9. For adjudication of bail application, order passed in other cases arising out of different FIR