The court emphasized that every person is presumed innocent until proven guilty and that accused individuals cannot be kept in custody as a form of punishment before trial.

1. Through the instant application, applicant-Vicky Giry seeks grant of bail in criminal challan titled ‘State Vs. Vicky Giry’ in case FIR No.32/2017 under Section 8/21/22 NDPS Act pending disposal before the Court of 1st Additional Sessions Judge, Jammu.

2. Learned counsel for the petitioner submitted that the petitioner is falsely and frivolously implicated in FIR No.32/2017 under Section 8/21/22 NDPS Act. That as per prosecution story the applicant was found to be in possession of Psychotropic substances and was booked under Sections 8/21/22 NDPS Act. The petitioner is in judicial custody after his arrest on 02.03.2017. The petitioner had moved bail application bearing No.158/2017 before the learned trial Court, which came to be dismissed on 08.05.2017, whereas the learned trial Court has not appreciated the fact that most of the drugs alleged to be recovered from the petitioner did not fall within the category of Psychotropic Substances and were recovered under Drugs and Cosmetic Act. However, as per finding returned by the learned Trial Court that the Psychotropic Substances alleged to be recovered from the accused fell within the category of small and intermediate quantity. It is stated that as per law laid down by the Hon’ble Supreme Court which stipulates for grant of bail but the same was denied to the petitioner.

3. With the afore mentioned submissions, learned counsel prays for grant of bail to the petitioner with any rider/ conditions whatever this Court deems fit.

4. Brief facts of the case are that on 02.03.2017 police of police station Bakshi Nagar while performing checking duty near boys Hostel Resham Ghar Coloney noticed petitioner and during checking contraband was found. The alleged contraband in the shape of 11 injection of Diazepam of 2ml each; 1 injection of Phenergen; 2 injections of Buprenorphine of 2ml; 5 injections of improchloroperzine of 2ml each; 2 injections of Rexogesic of 2ml each, 4 tablets of Nitrosum -10 from first Bag and from second Bag 14 injection of Daizapam, used injections of promethazine, 3 used injections of Phenergan, 10 sterile water and 2 syringes were recovered for which he did not explain anything as to what was purpose of his possession.

5. Court below has categorically stated that quantity found is intermediate, but refused to grant the bail on the ground that in case bail is granted, it will amount to misplaced sympathy.

6. Heard learned counsel both the side and considered the law on the subject.

7. All the offences under section NDPS Act are serious in nature and punishment provided is up to 20 years when the quantity is found in commercial category.

8. Section 37 of NDPS Act reads as under:-

“[37. Offences to be cognizable and non-bail able:-

(1) Notwithstanding anything contained in the code of Criminal Procedure, 1973(2 of 1974)- every offence punishable under this Act shall be cognizable; 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, the court is satisfied that there are 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 law for the time being in force, on granting of bail,].”

9. From the perusal of this Section, it is evident that no person can be enlarged on bail, if he is found in possession of commercial quantity of Narcotic and Psychotropic Substances Act unless Court comes to the conclusion that accused is not guilty of offence. In present case, accused has been found in possession of