The court clarified that Section 37 of the NDPS Act applies only to offenses involving commercial quantity of narcotics and psychotropic substances. The general law of bail under Section 497 Cr.P.C. applies in cases where the offense does not fall within the scope of Section 37.

1. This is an application filed under Section 498 Cr.P.C. for grant of bail. The facts giving rise to filing of the instant application, briefly stated are that, the petitioner was arrested on 04th March, 2017 by the police of Police Station, Kathua and the prosecution has alleged in the charge sheet that the petitioner was stopped by the ASI and two Constables near Shakti Model School, Kathua at about 6.30 P.M when he was riding Motorcycle bearing Registration No. PB58F/5044 and on search, 100 grams of charas (narcotic) was recovered from him and one Tridoo Ram, as alleged in the charge sheet, produced by the police in the Court of learned Principal Sessions Judge, Kathua on 04th April, 2017 and said Tridoo Ram was bailed out on 07th March, 2017 by the learned Special Mobile Magistrate (Sub-Judge), Kathua and the charge sheet was produced in the Court of learned Principal Sessions Judge, Kathua, where the trial is pending and one prosecution witness has been recorded in the said case. The prosecution has cited 14 witnesses and only one witness has been recorded and there is no aspect of ending the trial in near future. The petitioner further submits that it has also been alleged in the charge sheet that the petitioner on enquiry has told the said police party that he has kept the narcotic in his quarter. It is submitted that it is also alleged in the charge sheet that the house of the petitioner was searched and 600 grams of narcotic was recovered from his quarter. The petitioner also submits that he denies that 100 grams was recovered from his pocket, when he was riding the motorcycle and thereafter, 600 grams was recovered from his quarter.

2. The petitioner also submits that the petitioner moved the bail application before the learned Sessions Judge, Kathua, but said bail was rejected vide order dated 30th May, 2017 by the learned Sessions Judge. It is further submitted that the learned Sessions Judge, Kathua has observed that the quantity of Charas, which has been recovered and seized, does not fall within the category of commercial quantity, as such, the provisions of Section 37 of the NDPS Act are not attracted in the present case. The alleged contraband in the charge sheet is 700 grams, which is not a commercial quantity as per the schedule of NDPS Act and the same is intermediate quantity. Therefore, the Section 37 of the NDPS Act is not applicable.

3. It has been further submitted by the petitioner that from the charge sheet, it is clear that the police has not proceeded as per Section 50 of the NDPS Act and there is non compliance of Sections 50 and 42 of the NDPS Act and non-compliance of Sections 50 and 42 of the NDPS Act. The arrest of the petitioner is liable to be set aside unless non-compliance is otherwise justified. The petitioner submits that the alleged allegation against the petitioner is that he made disclosure about the fact that the narcotic is lying in his quarter. In this view of the matter, it is the abundant duty of the police to produce the petitioner before the Gazetted Officer or Magistrate, but this mandatory provision of law has not been observed, as provided in Sections 42, 43 and 44 of the NDPS Act and also that without search warrant, the quarter was searched, which is also not in accordance with Section 42 of the NDPS Act, i.e., after sunset. Therefore, the petitioner is also liable to be admitted to bail, as the civil liberty of the petitioner has been curtailed. The petitioner submits that in the present case, another accused has been admitted to bail. The co-accused cannot be treated differently though the petitioner is a member of police force.

4. It is further submitted that there is no allegation against the petitioner that he would jump over the bail or tamper with the evidence. The petitioner submits that as the alleged information was received by the police party, the said information was to be taken down in writing under Sub-Section (1) of Section 42 of the NDPS and also t