The quantity of contraband, the accused's criminal history, and the peculiar circumstances are crucial factors in determining bail under the NDPS Act.

JUDGMENT

Anoop Chitkara, J. - A female prisoner under custody for possessing 206 grams of diacetyl morphine (Heroin), aged 41 years, holder of Cameroon Passport, 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 250 grams of diacetyl morphine, 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(a) Bail Application No.153 of 2021, before Special Judge-I, Shimla, dismissed as withdrawn on 20.05.2021.

3. The petitioner has filed a declaration through her Counsel that she has no criminal past, history, or conviction. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 29th April, 2021, the police officials had arrested one student near Panthaghati, for possessing 3.19 grams of Heroin. During investigation, he told the investigator that he had purchased the drugs from the present petitioner. After that, the police started tracking the phone number of the petitioner and was able to find her location. During such tracking the police nabbed the petitioner near Shoghi while travelling in a car. On inquiry, she told her name as Mafo Teague Julitte, the petitioner herein. She was carrying a bag and from the search of the said bag, the police recovered a passport, date of birth certificate, currency and Heroin, which when weighed measured as 206 grams. After that the police conducted the procedural requirement under the NDPS Act and Cr.P.C., seized the Heroin and arrested the accused. Based on these allegations, the Police registered the FIR mentioned above.

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

6. On the contrary, learned Additional Advocate General contended that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

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. In Lachhman Dass v. Resham Chand Kaler, (2018) 3 SCC 187, (Para 10), Hon'ble Supreme Court held that the law under section 439 CrPC is very clear and in the eye of the law every accused is the same irrespective of their nationality.

9. 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.

10. The petitioner is a lady and is also a mother of a baby aged 11 months. At such a young age, the child would certainly need care and protection of the mother. Further more, she has no criminal history and the quantity involved is intermediate.

11. The petitioner's identity is not disputed because of the recovery of passport. In the petition, the petitioner has annexed vide Annexure P-1 (Colly.), copy of United Nations High Comm