1. An application presented before learned Additional Sessions Judge, Sopore, by the petitioner herein on 30.07.2018, was rejected in terms of order passed on 08.09.2018 with the observation that the material on record reveals the commission of offence under Sections 8/22, 29 of NDPS Act and it would not be proper at this stage to exercise discretion. The learned trail court has also taken note of the fact that the action of the petitioner is threat to society and so right to liberty and free movement has to be circumscribed.

2. While recapitulating the facts in which the petitioner herein was arrested, it is being contended that allegedly 48 capsules of medicine Spasmoproxyvon Plus were seized from the petitioner and 44 capsules were seized from the personal search of the driver of the vehicle, as portrayed in the case by the investigating agency. The facts and circumstances, as quoted in detail, are given as:

“On 23rd of July, 2018, police were on Nakah duty. They intercepted a vehicle bearing registration No.JK09A-1755 which was boarded by the petitioner and other person (driver). On personal search of the petitioner, 48 capsules of medicine Spasmoproxyvon Plus were seized from him and 44 capsules seized upon personal search of the driver of the vehicle. Accordingly, FIR No.98 of 2018 under Section 8/22 & 29 of NDPS Act was lodged against the petitioner. The petitioner moved a bail application before the Court of Additional Sessions Judge, Sopore, on 30.07.2018, which was rejected on 08.09.2018.

3. The petitioner has filed the instant petition under Section 498 Cr. P. C seeking his release of bail, precisely, on the following grounds:

(i) Because, the accused were in possession of only an intermediate quantity of the contraband which is 48 Capsules of Medicine Spasmoproxyvon Plus which contains Tramadol Whereas the commercial quantity of the same in the notification No. 1762 (E) Dated 26th of April 2018 appended to the NDPS Act at S. No. 238 ZH is 250 gms. Hence the rigor of Section 37 NDPS Act is not applicable, but the bail application is to be dealt within the normal fetters of Section 497 Cr. PC, which applies an embargo only in cases where the offence is punishable with imprisonment for death or life. Whereas the case is hand is punishable under Section 20 (ii) of NDPS Act with a minimum of one year and may extend to a maximum of 10 years.

(ii) Because, the Court granted bail in a case titled State v. Dawood Ashraf Dar, case bearing FIR No. 184/2018 under Section 8/22 NDPS Act, where the quantity of the contraband seized was more than what has been seized in this case. 56 capsules were seized from the applicant and a total of 152 capsules in the case, whereas 48 capsules have been seized from the applicant and a total of 102 capsules in the case.

(iii) Because, the investigation of the case is complete and only FSL report is pending. Hence the question of hampering or tampering with the investigation of the case does not arise.

(iv) Because, the applicants are behind the bars since January, i.e. for almost two months, for contravention in relation to intermediate quantity which was never the intention of the legislature, but the very object of the amendment to the NDPS Act of 2001 is as follows:

Statement of Object & Reasons:

Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of minimum ten years rigorous imprisonment which may extend to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial, it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery.

Therefore, it is proposed to rationalize the sentence structure so as to ensure that while drug tra