The quantity of seized drugs and the applicability of Section 37 NDPS Act are crucial factors in determining bail applications for offenses under the NDPS Act.

1. On 16.01.2018, a police patrol party spotted a vehicle bearing registration No. JK01X-7020 at Ali Jan Road near Bohlochipora. The vehicle was stopped and checked. A quantity of 1019 bottles of Cof-Rex and Rex-cof were found and recovered from the vehicle. The vehicle was driven by Faisal Ayoub Sheikh S/o Mohd. Ayoub Sheikh R/o MIG Colony Bemina, Srinagar, who was accompanied by Feroz Ahmad Khanday S/o Gh. Mohd. Khanday R/o Bilal Colony, Qamarwari, Srinagar and Mudasir Sultan Bhat @ Majid S/o Mohd. Sultan Bhat R/o Sir Syed Abad Bemina, Srinagar. After the recovery of these controlled drugs, a case bearing an FIR No. 07/2018 for the commission of offences punishable under Section 8/22 NDPS Act, was registered against the petitioners at Police Station, Soura, Srinagar, with which the investigation commenced. During the course of the investigation of the case, the controlled drugs (799 bottles of Cof-Rex weighing 100 ml each and 220 bottles of Rex-Cof weighing100 ml each) were sealed and seized on spot. These were produced before an Executive Magistrate. The samples of the drugs were taken. These were sent to FSL for expert opinion. The residue was resealed and, accordingly, the accused were roped in for the commission of the offences aforesaid.

2. The pith and core of the petition of the petitioners is that it is only an intermediatory quantity of drugs that has been seized from them and, therefore, the rigor of Section 37 of the NDPS Act, will not apply to the case on hand. It is also stated by the petitioners that they are innocent and have not committed any offence. The contention of the petitioners further is that in a case like the present one grant of bail is the rule and its refusal is an exception. It is also pleaded by the petitioners that they have deep roots in the society and they will not flee from justice but will cooperate with the investigating officer and will present themselves before him if and when they are required to do so.

3. The respondents have resisted and controverted the applications of the applicants chiefly on the grounds that the controlled drugs were recovered from the possession of the applicants. The petitioners have committed a heinous offence. The menace of the drugs has eaten into the vitals of the society. It is a crime against the society and the societal concerns have to be guarded with zeal and zest. The motion so preferred by the petitioners seeking admission to bail in relation to the above referred crime is devoid of any merit and, as such, the same deserves to be rejected, as the quantity of drugs recovered from them falls within the scales of commercial quantity.

4. Heard and considered.

5. What requires to be stated at the outset is that Faisal Ayoub Sheikh, one of the petitioner moved an application for bail before the learned Additional Sessions Judge at Srinagar and the learned Judge after taking an overall view of the application came to the conclusion that a commercial quantity of the drugs has been recovered from his possession and, therefore, he cannot be admitted to bail. This petitioner, however, has repeated and reiterated that the quantity of drugs seized in the case is lesser than a commercial quantity but greater than a smaller quantity and, therefore, he is entitled to bail. The other petitioner, Feroz Ahmad Khanday has been admitted to interim bail by this Court.

6. The apex Court of the country in the case of E Micheal Raj v. Narcotic Control Bureau reported in (2008) 5 Supreme Court Cases 161, while examining whether it is the pure content of the drug or the entire mixture that has to be taken into consideration in determining whether the same falls within the parameters of the small, medium or commercial quantity, held as under:

It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant qu