The quantity of the substance, the petitioner's cooperation in the investigation, and the potential for imposing stringent conditions to address concerns about influencing the investigation and intimidating witnesses influenced the Court's decision to grant bail.

JUDGMENT

Anoop Chitkara, J. - On allegations of possession and sale of 954 grams of Charas, which is an intermediate quantity, the petitioner, apprehending arrest, came up before this Court under Section 438 CrPC, seeking anticipatory bail.

2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, (1980) AIR H.P. 36 , (Para 9 & 15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

3. In Para 18 of the bail application, the petitioner declares having no criminal history relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 17.5.2021, the police officials of Police Station, Sadar Bilaspur were patrolling at Chandigarh-Manali highway. At about 4:50 a.m., one car came which was stopped for checking. Three persons were sitting in the car. On noticing the police, they became perplex and started sweating. On inquiry, the driver of the vehicle told his name as Rajat Kumar and other persons as Milind Bhalla and Nikhil Dabar, all residents of Delhi. On checking the vehicle, the police recovered Charas and net weight of the same was 954 grams. After that, the Investigator arrested the aforesaid persons. During investigation, they revealed involvement of the petitioner herein. Further investigation detected phone-call conversations between the petitioner and the accused. Based on these allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner contends that the custodial investigation would serve no purpose whatsoever. The incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

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

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 petitioner has joined investigation and he is the first offender. The contraband involved is Charas and the quantity is 954 grams, which 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. In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

9. 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