In cases involving intermediate quantity of contraband, the rigor of Section 37 of the NDPS Act does not apply, and bail applications should be considered under the provisions of Section 497 of the Cr.P.C.

JUDGEMENT/ORDER :

1. Petitioners/accused namely, (i) Deepak Gupta (age 31 yrs) S/o Sh. Ashwani Kumar R/o Ward No. 17 near Tangri Palace Kathua, (ii) Tarun Sharma (age 21 yrs) S/o Shiv Dutt Sharma R/o Ward No. 6 Sher Singh Mandi Kathua & (iii) Hitesh Gupta (age 24 yrs) S/o Sh. Rakesh Gupta R/o Ward No. 2 Kathua, have sought regular bail in FIR Bearing No. 56/2021 of Police Station Rajbagh, Kathua for commission of offences contrary to Sections 8/21/22/29 of Narcotic Drugs Psychotropic Substance Act, 1985 (for short the NDPS Act). It is averred, that petitioners are permanent residents of U.T. of J&K and citizens of India having no criminal objectionable antecedents whatsoever are in their young age, but have been subjected to frivolous criminal case infringing their right of liberty and their entitlement to the presumption of innocence; that the petitioners came to be arrested on 15.09.2021 for the allegations that 24 bottles of CIREX 100 ml each with mark WINCIREX were found from them while driving a car BREEZA Bearing No. JK08H/5000 on a naka checking point opposite Rajbagh Police Station, Kathua; that the court of Ld. Addl. Sessions Judge Kathua vide order dated 14.12.2021 framed charges against petitioners u/ss 8/21/22/29 of NDPS Act to which the petitioner/accused pleaded not guilty and trial is being conducted in the said court; that before framing charges petitioners had moved an application on 29.10.2021 for grant of bail, but Ld. Addl. Sessions Judge Kathua rejected the bail application vide order dated 14.12.2021; that the respondent/prosecution have not disclosed as how the alleged 24 bottles of CIREX 100 ml each marked as WINCIREX are narcotic drugs/psychotropic substance/manufacture drugs and even if those are so then also for how much quantity, commercial/intermediate or small the petitioners are being charge sheeted; that as per FSL report only 2 bottles of specimen out of 24 bottles seized bottles accompany the charge sheet has only reference to the content of Codeine Phosphate as being a narcotic analgesic.

2. Respondent/U.T. of J&K has opposed the bail application on the grounds, that from the possession of accused persons while driving the vehicle car BREEZA Bearing No. JK08H/5000, 24 bottles of WINCIREX were recovered whereby the accused have committed offences u/ss 8/21/22/29 of NDPS Act and the final report after usual investigation has been produced in the court of Ld. Addl. Sessions Judge Kathua where the trial is being conducted. It is contended, that the court cannot appreciate evidence at the stage of deciding the bail application, accused have committed heinous offences against society and their bail application deserves to be rejected and dismissed, as there is every likelihood that the accused may jump over the conditions of bail and influence the vital prosecution witnesses.

3. Ld. Counsel for petitioners while making a strong case for their enlargement on bail has vehemently argued, that the charge sheet laid in the court of Ld. Addl. Sessions Judge Kathua does not depict that the quantity of alleged contraband recovered from the accused persons is commercial, one bottles of WINCIREX Syrup contain 10 mg of codeine phosphate out of 5 ml which when calculated comes to total 48 grams of codeine phosphate in 24 bottles of WINCIREX Cough Syrup (100 ml each) which is intermediate quantity. It is argued, that Delhi High Court in a case law, titled Iqbal Singh v. State decided on 13 July, 2020 has granted the bail to the accused found in possession of Onerex cough syrup which also contained the codeine as the drug content, moreso, Coordinate Bench of J&K High Court on 28.01.2022 in a case titled [2022 (4) JKJ 64[HC]] Lovedeep Nath v. U.T. of J&K granted bail to the accused found in possession of 3000 capsules of Tramadol on the ground that the challan as well as the report of FSL did not mention percentage of narcotic content in the capsules and embargo contained u/s 37 was not applicable. It is moreso argu