The main legal point established in the judgment is that the determination of the quantity of contraband and the application of bail provisions under the NDPS Act should be based on a realistic and pragmatic approach, with bail being the general rule and its refusal being an exception.

JUDGEMENT/ORDER :

1. Applicant has sought regular bail in FIR No. 120/2020 of Police Station Rajbagh Kathua for commission of offences contrary to sections 8/15/29 of Narcotics Drugs Psychotropic Substance Act, 1985 (for short the NDPS Act). It is averred, that applicant is a citizen of India and permanent resident of U.T. of J&K and is entitled to protection of all legal statutory and constitutional rights guaranteed to him by the constitution of India; that he has been implicated in false and frivolous case which has culminated in the production of challan which is pending disposal before the court of Ld. Sessions Judge Kathua titled State of J&K vs. Mohd. Ashraf and Anr.; that the applicant preferred bail application before the trial court but the same was rejected by the trial court's order dated 15-11-2021 on the grounds that quantity of alleged poppy straw recovered falls under commercial quantity; that the challan makes it amply clear, that only 2.66 kg of alleged poppy straw was recovered from the possession of applicant after his arrest on 26-08-2020 which is smaller quantity; that the trial court of Ld. Addl. Sessions Judge Kathua was not right in holding that alleged contraband falls in the category of commercial quantity; that the applicant is in custody for more that 1 year in District Jail Kathua despite the fact that intermediate quantity of contraband poppy straw has been recovered from his possession; that the applicant undertakes to abide by all the terms and conditions imposed by the court if enlarged on bail.

2. Respondent No. 1/U.T. of J&K through SHO Police Station Rajbagh Kathua by filing objections/status report has opposed the bail on the grounds, that on 28-06-2020 a special Naka duty was laid at NHW near Police Station Rajbagh, at about 1630 hours one vehicle Tata Mobile Pickup 207 bearing registration No. JK02AJ/9451 coming from Jammu towards Lakhanpur was stopped for checking purpose, during checking of the said vehicle 8 white colored plastic bags (toda) hidden under it weighing 75/80 kg (10 kg each) poppy straw were recovered from driver who disclose his name as Mohd. Ashraf S/o Mohd. Yousaf R/o Village Jagti Kamini Tehsil Nagrota District Jammu (respondent No. 2/accused), on the tip of information during the course of investigation, on 06.08.-2020 applicant/accused was arrested for illegal trade of selling poppy straw and after his arrest on 01-09-2020 he confessed to have hid poppy straw in an abandoned toilet on the backside of his dhaba and on his disclosure, 2.660 kg of poppy straw was recovered from him; in view of the evidence collected, the challan of the case has been produced in the court of law against applicant/accused and the respondent No. 2.

3. Ld. Counsel for petitioner has strenuously argued, that on the naka laid by police party at Rajbagh Kathua on 28-06-2020, 75/80 kgs of poppy straw of commercial quantity was recovered from the possession of respondent No. 2/principal accused, while after a gap of about 2 months on 06-08-2020 from the possession of petitioner/accused 2.660 grams of poppy straw of intermediate quantity was recovered, therefore, two accused persons have been found in possession of the contraband poppy straw individually. It is argued, that in view of the settled legal position that when two (2) accused persons were found together individually carrying contraband and there was no evidence of conspiracy, quantity of contraband carried by both could not be added to bring it within the meaning of commercial quantity. To support his arguments, Ld. Counsel has relied upon, (i) judgment of Hon'ble Supreme Court reported in AIR 2005 (SC) 4248 (Amarsingh Ramjibhai Barot-Appellant Versus State of Gujarat- Respondent) & (ii) Judgment of Coordinate Bench of J&K High Court titled Hardeep Singh-Petitioner/Appellant(s) Vs. Union Territory of J&K-Respondent(s).

4. Ld. GA has vehemently argued, that the quantity of contraband recovered from the possession of petitioner and responde