The main legal point established in the judgment is that bail under the NDPS Act can only be granted if there are reasonable grounds to believe the accused is not guilty of the offence and not likely to commit any offence while on bail, as per Section 37 of the Act.

JUDGMENT

1. The petitioners have filed the instant bail application seeking bail in a case arising out of FIR No.10/2021 for offences under Section 8/15/29 of the NDPS Act registered with Police Station, Yaripora Kulgam.

2. As per case of the prosecution, on 26.02.2021, Police of Police Post, Frisal received information from reliable sources that the petitioners herein are involved in the trade of drug trafficking. On the basis of this information, the FIR came to be registered and the investigation was set into motion. During the investigation, the police party along with the SHO, P/S Yaripora, and the Executive Magistrate, Frisal, raided the house of petitioner Parvaiz Ahmad Dar. During its search, 11 Nylon bags were recovered from underneath the tin shed and these bags were found to contain Poppy Straw weighing 200 kgs. The samples were taken and the same were sealed, whereafter the samples were sent to the FSL for chemical examination. As per the report of the FSL, the recovered articles were identified as Poppy Straw plant material of Papaver Soniferum. Thus, according to the prosecution, offences under Section 8/15/29 of the NDPS Act were found established against the petitioners and the challan was laid before the Court.

3. It appears that charges for offences under Section 8/15/29 of the NDPS Act were framed against the petitioners and trial of the case was set into motion. During the trial of the case, the petitioners moved an application for bail before the learned trial court and the same was dismissed in terms of order dated 30.05.2022.

4. The petitioners have sought bail on the ground that there are contradictions in the statements of prosecution witnesses recorded during trial of the case and these contradictions relate to essential aspects of the case like the place of recovery of the contraband. It has been further submitted that even as per the prosecution case, the contraband has not been recovered from all the three accused persons but it has been recovered only from the house of petitioner Parvaiz Ahmad Dar. According to the petitioners, there is no material on record of the charge sheet nor anything has come in evidence during the trial against other two accused.

5. The respondent has resisted the bail application of the petitioners by filing a reply thereto. In the reply, besides narrating the allegations made in the charge sheet, it has been contended that the material on record clearly suggests that the petitioners are involved in the alleged crime. It has been further contended that the petitioners are involved in a crime relating to possession of commercial quantity of contraband substance, as such, they cannot be enlarged on bail in the face of rigour contained in Section 37 of the NDPS Act.

6. I have heard learned counsel for the parties and perused the record of the case including the trial court record.

7. The allegations against the accused including the petitioners are that commercial quantity of contraband substance was recovered from their possession. There is no dispute to the fact that the quantity of contraband substance alleged to have been recovered from the petitioners falls under the commercial quantity. Therefore, provisions contained in Section 37 of the NDPS Act are attracted to the instant case. Section 37 of the NDPS Act reads as under:-

'37.Offences to be cognizable and nonbailable.:

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless:

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilt