Point of Law: Offence of illegal trade of drugs - Gant of Bail - There is no straight jacket formula or settled rules for the use of discretion but at the time of deciding the question of “Bail or Jail" in non- bailable offences, court has to utilize its judicial discretion not only as per the settled law but also according to the principles laid down by Cr. PC and judicial precedents.

JUDGMENT :

1. The instant bail application has been filed by the petitioner for seeking bail in case FIR No. 173/2019 for commission of offences punishable under Sections 8/20 and 29 NDPS Act, registered at Police Station, Sumbal.

2. According to the prosecution version, on 03.11.2019 Police Station Sumbal, received a docket from ASI Nazir Ahmad No. 71/BPR incharge Naka Party Wangipora revealing that on 03.11.219 at 07:45 hours during vehicle checking one Scooty bearing registration No. JK15-7696 being driven by one person along with a passenger was stopped for checking in routine and that the riders tried to flee from the spot and upon being chased came to be apprehended. Upon questioning the said persons disclosed their names as Mohammad Shafi Rather S/o Ghulam Hassan Rather R/o Hilalabad Nesbal and Jahangir Ahmad Rather S/o Zahoor Ahmad Rather R/o Arampora Sumbal and on being searched were found carrying two nylon bags containing Cannabis straw like substances approximately 17 Kgs for selling the same amongst youth. Upon receipt of the docket, the FIR supra is stated to have been registered and investigation set into motion, whereupon seizure memo is stated to have been prepared in presence of SDPO Sumbal and statements of material witnesses recorded establishing commission of offences in question by the accused persons and during their questioning are stated to have disclosed that the substances in question had been purchased/taken by them from one Firdous Ahmad Wani S/o Ghulam Hassan Wani (petitioner herein) and Lateef Ahmad Wani S/o Abdul Samad, both residents of Inderkoot Sumbal and upon effecting search in the house of the petitioner, one Nylon bag containing 11.80 Kgs of Bhung straw along with maize husk 06 Nos. carrying 100 grams like substances of Charas were recovered and petitioner was found involved for commission of offences under Section 8/20 NDPS Act. The samples of the alleged drugs are stated to have been forwarded to FSL Srinagar for obtaining expert opinion, upon receipt of which same had been found to be narcotic substances. The petitioner is stated to be involved in illegal trade of drugs posing serious threat to the youth.

3. The petitioner herein in the petition on the other side states to have been falsely implicated in the FIR in question and arrested during a raid at his house upon a confessional statement of co-accused persons.

4. It is being stated that the whole story of prosecution is concocted and fabricated and no recovery whatsoever has been made from the person of the petitioner though the recovery of the alleged contraband is stated to have been recovered from his house yet the petitioner claims to be innocent and law abiding citizen having not committed any offence whatsoever.

5. It is being stated that the prosecution version is baseless so much so none of the mandatory provisions under the Act, with regard to the arrest, seizure and raid are stated to have been complied with in accordance with the Act by the respondents. The alleged contrabands seized are stated to fall under the category of an intermediate and small quantity under the Act thus, excluding the application of Section 37 of the Act.

6. It is being stated that the two other co-accused persons have been granted bail by this Court entitling the petitioner to bail as well on the ground of parity.

7. Heard learned counsel for the parties and considered the matter.

8. Learned counsel for the parties while making their respective submissions reiterated their contentions raised and grounds urged in their respective pleadings.

9. It is pertinent and profitable to mention here that the provisions of Section 37 of the Act are applicable for Commission of offences under Sections 19, 24 and 27-A only when a commercial quantity of a drug or substance is recovered. Section 37 supra forbids release on bail of a person who is found in possession of commercial quantity of drug or substance unless the prosecution is given an opportunity to oppose the