Interpretation of drug quantity and application of Section 37 of the NDPS Act are crucial in determining bail eligibility.

ORDER :

M.K. Hanjura, J.

1. In this application, the applicant has craved the indulgence of this Court in admitting him to bail for the commission of offence under Section 8/15-18 NDPS Act, on the grounds, inter alia, that he was detained by the police authorities in a case bearing FIR No. 205/2017 for the commission of the aforesaid offences registered against him at Police Station Pampore. The applicant has further stated that he has been falsely implicated in the case. The mandatory provision of the NDPS Act, have been violated in the case with impunity and, therefore, the detention of the applicant is illegal and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. The applicant has further contended that he has been in custody for the last more than nine months by now and his continued detention has hampered him from proving his innocence. It is further alleged that the narcotic substance was recovered from a passenger vehicle which he was driving at that moment. A number of passengers boarded and de-boarded from the said vehicle at different stops, and therefore, the commission of the crime could not have been imputed to him. He will not tamper with the prosecution evidence and will abide by the conditions whatsoever are imposed on him, in case he is admitted to bail. In the premises, the applicant has urged that he be admitted to bail for the commission of the aforesaid offences.

2. The respondent, despite availing umpteen opportunities, have failed to file the objections.

3. Heard and considered.

4. What requires to be stated at the outset is that the applicant moved an application for bail before the learned Sessions Judge at Pulwama. The same was transferred to the Court of the learned Additional Sessions Judge, Pulwama. 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. The applicant, 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 one and, therefore, he is entitled to bail.

5. The apex Court of the country in the case of E Micheal Raj v. Narcotic Control Bureau reported in (2008) 5 SCC 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 quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms. of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. is mixed with 50 kgs. of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance/s is not to b