The weight of the narcotic substance is crucial in determining the quantity under the NDPS Act, and the criteria for granting bail depend on the factual matrix of the case, as established by previous Supreme Court cases.

JUDGEMENT/ORDER :

1. The petitioner has filed this application for grant of bail for the commission of offences punishable under Sections 8/21/22/27-A/29 NDPS Act in case FIR No. 28/2019 dated 15.03.2019 registered at Police Station Miran Sahib, Jammu.

2. As per the story of prosecution, on 15.03.2019 at 19:35 hours during checking near Kullian, R.S. Pura, the police noticed that two passengers coming from R.S. Pura side on seeing police checking when tried to ran away towards Kullian, the police chased and apprehended them. During their search 3000 capsules of Tramadol were recovered from their possession and they disclosed their names as Lovedeep Nath and Jaswant Singh. However, both of them failed to render any explanation regarding the possession of 3000 capsules each nor they produced any doctor's prescription, license, permit or authorization to carry the said contraband illegally.

3. Learned counsel appearing for petitioner argued that the embargo contained under Section 37 of the NDPS Act is not applicable in the present case because neither the weight/quantity of the narcotic content in the capsules nor the weight of capsules allegedly recovered from the possession of accused has been mentioned in the charge sheet, even the report of FSL is silent regarding the percentage of narcotic content in the capsules. Learned counsel further argued that it is not the number of capsules that will establish whether the recovery of narcotic substance effected from applicant falls is small, intermediate or commercial quantity, but it is only the weight of narcotic substance which determines the quantity.

4. Objections/status report has been filed by the respondents. While opposing the bail of petitioner, it is contended that accused Jaswant Singh was in the business of selling narcotics in District Jammu and its adjoining areas, namely, Arnia, Miran Sahib, R.S. Pura, who had an established network of the addicts, who were his regular clients. It is contended that the main accused, namely, Ajay Kumar Anand has already been released on bail. It is further contended that the police have failed to arrest one Ramakant, son of Lok Chand, resident of Hindpura, Rajasthan, from whom main accused Ajay Kumar was procuring capsules.

5. Heard learned counsel appearing for the parties, considered their rival contentions and also perused the order of the trial court rejecting the bail application of petitioner herein.

6. The specific stand taken in the bail application as also the main argument of learned counsel for petitioner is that neither the weight/quantity of the narcotic content in the capsules nor the weight of capsules allegedly recovered from the possession of accused has been mentioned in the charge sheet, even the report of FSL is silent regarding the percentage of narcotic content in the capsules.

7. Admittedly, the status report filed by the respondents is silent regarding the percentage of narcotic content in the capsules or the weight of capsules allegedly recovered from the possession of accused. The status report came to be filed on 29.11.2021 and even after a lapse of more than two years and eight months, the investigating agency/respondents have failed to disclose the percentage of narcotic content in the capsules. The respondents also have not denied that the Challan as well as the report of FSL did not mention the percentage of narcotic content in the capsules, even the trial Court while rejecting the bail application did not deal with this specific aspect of the matter; meaning thereby one can find force in the argument of learned counsel for petitioner that the embargo contained under Section 37 of the NDPS Act is not applicable in the present case once the investigating agency has itself failed to disclose the percentage of narcotic content in the capsules or the weight of capsules in the Challan. A perusal of the status report reveals that the investigation has not been conducted in a