The court ruled that the applicant is entitled to bail as the quantity of contraband does not meet the commercial threshold, and pre-trial punishment is prohibited.

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-Sagar has sought his release, on bail, during the pendency of the trial, in case FIR No.7 of 2025, dated 07.01.2025, registered under Sections 20-61-85 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Dharamshala, District Kangra, H.P.

2. According to the applicant, he has falsely been implicated, in the present case and has been arrested by the police with allegedly possessing 199 gms of charas.

3. As per applicant, he is in judicial custody and is no longer required by the police for investigation.

4. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-III, Kangra at Dharamshala, District Kangra, Himachal Pradesh. However, the same was dismissed vide order dated 18.01.2025.

5. Apart from this, Mr. Jeevan Kumar, 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.

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

7. When, put to notice, the police has filed the status report, disclosing therein, that on 07.01.2025, HC Jitender Kumar No.77 (Investigating Officer), Police Post Yol, has submitted a ruqqa to Police Station, Dharamshala, mentioning therein that he, along with other police official, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics.

8. It is the further case of the police that at about 03:00 pm, when, he was present near cremation ground on the road, leading to Ravinda Yol, then, he noticed a person, sitting in the rain shelter. The said person, on seeing the police vehicle, got perplexed and after lifting his rucksack, made efforts to proceed towards cremation ground. His activity had raised a suspicion in the mind of the Investigating Officer. As such, he has been nabbed by the police party. On enquiry, the said person disclosed his name as Sagar (applicant).

9. It is the further case of the police that thereafter, rucksack of the said person was searched and cannabis, weighing 199 grams, was found, which was taken into possession and other codal formalities were completed.

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

11. The contraband, so recovered, was sent to SFSL, Junga, after complying with the provisions of Section 52A of the NDPS Act and after receiving positive report from there, the police has prepared the chargesheet (challan), which is about to be filed in the Court.

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

13. Heard.

14. In this case, the contraband, allegedly stated to have been recovered, is 199 grams of charas. Admittedly, the said contraband does not fall, within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of the NDPS Act are not applicable, in this case.

15. Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, in that eventuality, the presumption of innocence is still available to the applicant, as the bail application cannot be rejected merely as a matter of punishment, since, pre-trial punishment is prohibited under the law.

16. In the present case, investigation is complete and according to the status report, the police has prepared the challan, which is about to be submitted in the Court. This fact is sufficient to demonstrate that the custodial interrogation of the applicant is no longer required by the police.

17. Moreover, the chances of conclusion of trial against the applicant, in near future, are not so bright. As such, he cannot be kept in judicial custody, that too, for the indef