The court held that the applicant is entitled to bail as the quantity of contraband does not constitute commercial quantity, thus Section 37 of the NDPS Act is inapplicable, and the presumption of innocence remains.

JUDGMENT :

Virender Singh, J.

By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (hereinafter referred to as ‘ BNSS ’), applicant-Sunita @Sana has sought her release, on bail, during the pendency of the trial, in case FIR No.156 of 2024, dated 23.09.2024, registered under Sections 20, 21, 25, 27 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Manali, District Kullu, H.P.

2. According to the applicant, she is innocent person and has falsely been implicated, in the present case and has been arrested by the police for allegedly possessing 112 gms of charas and 5 grams of chitta/heroin.

3. As per applicant, the contraband, allegedly recovered in the present case, does not fall within the definition of ‘commercial quantity’, as such, rigors of Section 37 of the NDPS Act are not applicable, in this case.

4. It is the case of the applicant that in the present case, investigation is complete and charge-sheet has been submitted, before the Court of learned Special Judge-II, Kullu, H.P.

5. According to the applicant, she had earlier tried her luck by moving similar applications, before the Court of learned Special Judge-II, Kullu, Himachal Pradesh. However, the same were dismissed vide orders dated 22.11.2024 and 22.01.2025, respectively.

6. The applicant is stated to be in judicial custody since 23.09.2024 and according to her, the chances of conclusion of trial, against her, are not so bright. As such, she has prayed that no useful purpose would be served by keeping her in the judicial custody, that too, for the indefinite period.

7. Learned counsel appearing for the applicant has submitted that even, on the ground of parity, the applicant is entitled to be released on bail, as her co-accused, namely Manoj Kumar @Pathak, has already been released on bail, by this Court, vide order dated 07.03.2025, passed in CrMP(M) No.370 of 2025, titled as ‘Manoj Kumar @Pathak Vs. State of Himachal Pradesh’.

8. Apart from this, Mr. Anubhav Chopra, 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.

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

10. When, put to notice, the police has filed the status report, disclosing therein, that Investigating Officer of the present case, along with other police officials, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics.

11. It is the further case of the police that when, the police party was conducting the routine checking of vehicles, near Smahan Bazaar at NH-03, then, at about 12:30am, he stopped a vehicle, being driven by its driver, coming from Manali side and going towards Bahang side, for checking and its registration number was found to be HP58-A-7320 make Maruti Brezza, red colour. The driving licence of the driver was demanded and on checking, the same was found to be issued in the name of Manoj Kumar. Manoj Kumar has disclosed to the police that he is owner of the vehicle, but, is not having RC of the said vehicle.

12. It is the further case of the police that thereafter, the smell of smoke of cigarette was found inside the vehicle and on the rear seat, a man and a woman were found sitting there. On enquiry, the woman disclosed her name as Sunita, R/o District Nainital (applicant) and the man disclosed his name as Anil Kumar, R/o Manali. On checking of the vehicle, charas, weighing 112 grams and chitta, weighing 5 grams, were found, which was taken into possession and other codal formalities were completed.

13. After registration of the FIR, the police has arrested the applicant.

14. The contraband, so recovered, was sent to SFSL, Junga, after complying with the provisions of Section 52A of the NDPS Act. Subsequently, positive r