JUDGMENT :

Rakesh Kainthla, J.

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’), vide FIR no. 172/2022 dated 19.05.2022 registered at Police Station Sadar, Kullu, District Kullu, H.P.

2. As per the prosecution, 1.384 kgs of contraband was recovered from the petitioner. The investigation is complete. The petitioner has been in judicial custody since 19.05.2022. The Court has taken the sample but the same is not representative; hence, the petitioner is liable only for the possession of 26 grams of contraband. The compliance of Sections 41 and 42 of the NDPS Act was also not made. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.

3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 18.05.2022. The police saw the accused carrying a carry bag at 9:40 pm near a residential colony of Power Project Malana-II. The police stopped and searched the petitioner in the presence of witnesses and recovered 1.384 kgs of charas. The police arrested the petitioner and seized the charas. As per the report of analysis, the Exhibit was an extract of Cannabis and a sample of charas. The challan was prepared and presented before the Court on 10.08.2023. The matter is pending before the learned Additional Sessions Judge, Kullu. 09 witnesses have been examined and witnesses at Sr. No. 14 and 15 are to be examined on 27.12.2023.

4. I have heard Mr. Bhupinder Ahuja, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State.

5. Mr. Bhupinder Ahuja, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The sample of 26 grams was taken in the Court, which is not representative; therefore, the petitioner is liable only for the possession of 26 grams, which is a small quantity. The petitioner has already spent more than one and a half years in custody and has undergone the maximum sentence, which can be awarded by the Court for possession of a small quantity, therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

6. Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State submitted that the trial is continuing and the quantity is to be determined by the learned Trial Court. Learned Magistrate had specifically noticed while taking the sample that it was representative and it cannot be said that the sample was not representative. The petitioner was found in possession of a commercial quantity of charas and the rigours of Section 37 of the NDPS Act apply to his case. Therefore, he prayed that the present petition be dismissed.

7. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a thre