The interpretation of 'commercial quantity' and the statutory period for filing the challan under the NDPS Act influenced the court's decision in granting bail to the petitioner.

1. Petitioner-Firdous Ahmad Gazi, who is booked in case FIR No. 37 of 2012 registered under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short 'NDPS Act') in Police Station, Tarjuan (District Baramulla), is praying for the concession of regular bail, primarily on the following two grounds:-

(i) the quantity allegedly recovered from the petitioner falls under the head, 'non-commercial quantity' and as such, severity of Section 37 of NDPS Act and

(ii) the petitioner was entitled to bail as the challan in this case was not filed by the Prosecution Agency within the stipulated period (90 days), as contained in Section 36-A (4) of NDPS, Act.

2. Pursuant to notice, Mr. Naik has filed objections. He is, however, fair enough in admitting that the contraband (1 Kg of Charas) allegedly recovered from the petitioner does not fall under the head, 'Commercial quantity'.

3. Learned counsel for the petitioner also draws the attention of this Court to Section 2 (viia), which reads:

"Commercial quantity", in relation to Narcotic Drugs and Psychotropic Substances, means any quantity greater then quantity specified by the Central Government by notification in the Official Gazette."

4. As per the notification small quantity of charas is described as 100 grams, whereas commercial quantity of charas is described as one Kg.

5. Strengthening his arguments vis-a-vis the quantity of contraband, learned counsel relies upon the judgment of High Court of Himachal Pradesh in case titled "Ratio v. State of H.P." in which, in paras 41 and 42 of the said judgment, it is observed as under:-

"41. As already noted there is hardly any ambiguity, muchless conflict between Section 2(viia) and the notification as extracted here-in-above for determination of what would be the commercial quantity. By virtue of powers conferred under Sub-section (viia) of Section 2. Central Govern#31;ment is authorized to notify as to what would be the commercial quantity. Because the 'commercial quantity" on a plain reading of its definition amongst other things has to be "... greater than the quantity specified by the Central (Government by notification....". Under 2001 Act notification supra was issued specifying the quantity for the propose of Section 2(viia) of the Act. A perusal of this notification indicates that quantity specified is one kilogram. Various columns of the notification extracted hereinabove have to be read in conjunction with the substantive provision of Section 2(viia) of the Act. This also puts a harmoneous construction on both, notification as well as Section 2(viia) while determining the quantity under this sub-section, it has to be greater than One kg. There is hardly any doubt regarding either the words one Kg.", or the "commercial quantity which has to be "greater than", which in our considered view would always mean any quantity more than/bigger than/larger than one Kg. We are further of the view that this provision, and for that matter, notification admits of no other interpretation on its reading. Thus, it cannot be said that one Kg would be the commercial quantity for the purpose of Section 2(viia), as added by 2001 Act.

42. Another reason to take this view is, that substantive and main provision of the Act is Section 2 (viia) which is subject matter of the discussion in this judgment. It is also well known and accepted rule of interpretation of statues that rules, regulations as well as notification issued thereunder are meant to sub-serve the purpose of main provision of law and not other way round. Notification in the instant case, as extracted hereinabove, it a dele#31;gated legislation. Therefore, it can in no case bye-pass or over-ride the substantive provision of law and in case of conflict, delegated legislation has to give way to the main provision of law. "

6. Learned counsel also relies upon an order of Punjab and Haryana High Court dated 03.05.2012 passed in Cri.Misc. No. 7566 of 2012 in case titled 'Karan Singh v. State

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