Bail cannot be granted under Section 37 of the NDPS Act for commercial quantity possession unless specific conditions are met, particularly if the public prosecutor opposes the application.

JUDGMENT :

Sushil Kukreja, J.

By way of instant petition, filed under Section 483 of Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS), the petitioner is seeking bail in case F.I.R. No. 98/2023, dated 01.05.2023, registered at Police Station Sadar, District Bilaspur, H.P., under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act”).

2. The prosecution story, in brief, is that on 30.04.2023, the police party had laid a nakka at Nauni Chowk for traffic checking. At about 11:10 P.M., they noticed a car, bearing registration No. HR11L-0234, coming from Bilaspur side, which was signaled to stop and the driver was asked to show the documents of the vehicle. He was looking perplexed and making lame excuses alongwith the person sitting on co-driver seat. On suspicion, the police associated one independent witness Pritam Singh as well as Constable Ankit Kumar No. 348 and Constable Amit Kumar No. 304 as witnesses in the proceedings, in whose presence, the driver of the vehicle disclosed his name as Jitender (petitioner herein) and the person sitting on co-driver seat of the vehicle disclosed his name as Vikas. Thereafter, the police party searched the vehicle and during search, under the co-driver seat of the vehicle, a blue coloured carry bag was recovered, which was containing black coloured substance in the shape of sticks. On the basis of experience, the recovered contraband was found to be charas/cannabis. On weighment, the recovered charas/cannabis was found to be 2 kgs and 160 grams. Thereafter, the police completed all the codal formalities and FIR was registered against the accused persons and they were arrested.

3. The bail application has been filed on the ground that the petitioner is innocent and has been falsely implicated. The learned counsel for the petitioner contended that the petitioner is in judicial custody since 01.05.2023 and trial will take sufficiently long time to conclude, as such, he is entitled to be released on bail on the ground that his right of speedy trial has been violated.

4. Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner and quantity of the recovered contraband, i.e. commercial quantity, he is not entitled to be enlarged on bail. He further contended that the petitioner is a habitual offender and two more cases under the NDPS Act have been registered against him, as such, he does not deserve to be released on bail.

5. I have heard the learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record of the case. The perusal of the record indicates that the quantity of the charas/cannabis involved in the present case is 2 kgs & 160 gms. Since the quantity of the charas/cannabis falls within the definition of commercial quantity, therefore, the grant of the bail in this case is governed by the provisions of Section 37 of the NDPS Act, which reads as under:-

"37. Offences to be cognizable and non-bailable.

(1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other