JUDGMENT

Anoop Chitkara, J. - Petitioner who is in custody under Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), w.e.f. 9.4.2021, for possessing 334 grams of charas (Cannabis), and has come up before this Court under Section 439 of CrPC, seeking bail, on the grounds that the quantity of contraband allegedly seized is intermediate quantity and does not restrict bail, because the quantity greater than 1 kg of charas, falls in the category of the commercial quantity; hence the restrictions for bail imposed in S. 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.

2. Earlier, the petitioner had filed the following bail petitions:

(a) Bail Application Nos. 56 of 2021 and 58 of 2021 was filed before the Court of learned Special Judge, Hamirpur and the same stood dismissed on 17.5.2021.

3. In Para 7 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 9.4.2021 the police officials were patrolling in their jurisdiction. At around 6:50 pm they noticed one Alto car. The police officials indicated the driver to stop the car on which he abruptly parked the car. One more person was sitting with him in the adjacent seat. The police officials suspected contraband and after that they arraigned an independent witness and conducted search of the car. From the dashboard of the car the police party recovered 334 gram charas. After that the Investigator arrested the person and conducted other procedural requirements. Based on these allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

6. While opposing the bail, the alternative arguments on behalf of the State are that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

REASONING:

7. In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471 , the Hon'ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 15), this Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

8. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1 , Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

9. Without commenting on the case's merits, given the investigation stage, the period of incarceration already undergone, and the circumstances peculiar to this case, the petitioner makes a case for release on bail.

10. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

11. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another.

12. The petitioner shall be released on bail in the FIR mentioned above, subject to his