IMPORTANT POINT
The court ruled that possession of a non-commercial quantity of narcotics does not invoke the rigors of Section 37 of the NDPS Act, allowing for bail based on the presumption of innocence.

JUDGMENT :

Virender Singh, J.

1. By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’) applicant-Sudesh Kumar has sought his release, on bail, during the pendency of the trial, in case FIR No.25 of 2025, dated 17.02.2025 registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’) with Police Station Gaggal, District Kangra, H.P.

2. According to the applicant, he is innocent person and has falsely been implicated, in this case.

3. It has been averred in the application that the contraband, allegedly shown to be recovered, in this case, is 7.31 grams heroin/chitta, which does not fall within the definition of ‘commercial quantity’. As such, according to him, rigors of Section 37 of NDPS Act are not applicable, in this case.

4. Investigation, in the present case, is stated to be completed and nothing is stated to be recovered from the applicant or at his instance.

5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-I, Kangra at Dharamshala, District Kangra, Himachal Pradesh. However, the same was dismissed vide order dated 15.03.2025.

6. It is the further case of the applicant that no other criminal case has been registered against him.

7. Apart from this, Mr. Kush Sharma, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial.

8. On the basis of the above facts, a prayer has been made to allow the bail application.

9. When, put to notice, the police has filed the status report, disclosing therein, that on 17.02.2025, HC Deepak Kumar, has submitted a rukka to Police Station Gaggal, District Kangra, H.P., disclosing therein that on that day, he alongwith other police officials was on patrolling duty:

9.1 According to him, at about 8:10 PM, when he was present near Sanoura Chowk, then, he received a secret information, regarding the fact, that on the NH-154, on the Sarah link road, about hundred yards on the link road, two persons were standing. Out of the two persons, one was stated to have worn a black coloured jacket, whereas the other person was stated to have worn a green coloured jacket and that the said persons were having chitta in their possession. As per the secret information, if the said persons were nabbed, then chitta/heroine could be recovered in the large quantity.

9.2 The said information was found to be authentic and according to the IO, due to paucity of the time, it was not possible to obtain the search warrant/authorization, as such, he has complied with the provisions of Section 42(2) of the NDPS Act and submitted the requisite report to SDPO, Kangra.

9.3. Thereafter, independent witness, namely Ravinder Baba, Ex-Pradhan of Gram Panchayat, Gaggal was associated by apprising him about the information, which the IO had received. Thereafter at about 8:40 PM, two persons, described by the informant, were found standing there.

9.4. On seeing the police party, they become perplexed and tried to flee away from the spot, however, they were nabbed. By that time, the person, wearing light green coloured jacket, cleverly put his hand in right pocket of the jacket and threw a black coloured box in the bushes. When inquired about the same, he could not give any satisfactory answer, which developed a suspicion in the mind of IO that they might be having some objectionable/narcotic substance in their possession.

9.5 On inquiry, in the presence of the independent witness, the person, who had worn the light green coloured jacket, disclosed his name as Sudesh Kumar (applicant), whereas, the other person disclosed his name as Amar Kumar. Thereafter, the black coloured box, which was thrown by Sudesh Kumar (applicant) was opened by HC. Deepak K