IMPORTANT POINT
The court established that the presence of prior drug-related offenses and the potential for reoffending are significant factors in determining bail eligibility under the NDPS Act, even when the quantity of contraband does not invoke the strict provisions of Section 37.

JUDGMENT :

Mohd. Akram Chowdhary, J.

1. The petitioner is accused in a case registered vide FIR No. 524/2022 at Police Station, Udhampur for commission of offence punishable under sections 8/21/22 of the Narcotic Drugs and Psychotropic Substances Act (for short, "NDPS Act") which, after investigation, is pending trial before the court of learned Additional Sessions Judge, Udhampur ["the Trial Court"].

2. Petitioner prior to it moved a bail application before the Trial Court seeking his release from the judicial custody pleading therein that the petitioner has been falsely implicated in the case, investigation is complete and final report presented and nothing is required to be recovered from him. The application for bail filed by the petitioner was contested by the prosecution and the same was dismissed by the Trial Court vide its order dated 02.01.2023. As is apparent from order dated 02.01.2023 passed by the Trial Court, the petitioner was held not entitled to release on bail in view of his involvement in two other cases registered under sections 8/21/22 of NDPS Act, in which investigation is still pending, therefore, repetition of offence by the petitioner cannot be ruled out.

3. Having been aggrieved, the petitioner has moved this Court for his release on bail in the aforesaid case on the ground that the contraband-Heroine (chitta) recovered from the petitioner was weighing 5.51 gms, which falls under intermediate quantity, as such, rigors of Section 37 NDPS Act are not applicable and that the petitioner has already been granted bail by the competent Court of law in other two cases, against him.

4. Before adverting to the grounds on which the petitioner seeks concession of bail, it would be appropriate to have the prosecution version, which states that on 05.12.2022, PSI Rahul Jamwal No. 196625/EXJ along with Sgct Manohar Lal and SPO Nishant Sharma were deputed at Circular Road, Omara Morh and Sallian Talab area for patrolling on foot. During patrolling at about 1710 hrs., when police party reached at Circular Road, Udhampur, PSI Rahul Jamwal noticed one person coming from DFO Office towards Matador stand, Udhampur; that on seeing the police party, he tried to hide himself, this created suspicion and with the help of other members of the police party, said person was apprehended after hectic efforts, who disclosed his identity as Rakesh Singh S/o Kartar Singh R/o Near CEO Office Dhandyal, Udhampur. During personal search, contraband (heroine) like substance wrapped in a transparent polypack was recovered from the left pocket of his trouser. On questioning, petitioner failed to give any satisfactory answer. On this docket was prepared and sent through SPO Nishant Sharma to Police Station, Udhampur for registration of FIR and with request to depute an I.O. on spot for further investigation. On this report, case vide FIR No. 524/ 2022 for commission of offence under sections 8/21/22 NDPS Act came to be registered and investigation was entrusted to PSI Raman Kumar No. EXJ-196681.

5. Petitioner was arrested, the requisite legal formalities were completed, the contraband was seized, statements under section 161 Cr.P.C. recorded and the sealed samples were prepared and sent for forensic/chemical analysis. The seized item was found to be "Diacetylmorphine (Heroine). Investigation of the case was completed and challan presented before the Trial Court. It is claimed by the prosecution that the case is proved by the statements of witnesses including FSL expert and the Investigating Officer, who, too are cited as prosecution witnesses.

6. Mr. Jagpaul Singh, learned counsel for the petitioner has reiterated the submissions, which he made in support of his bail application before the Trial Court. He submits that that given the fact that that the contraband allegedly recovered from the petitioner is 5.51 gms. in weight, as such, falls under intermediate quantity, therefore rigors of Section 37 of NDPS Act are not attracted in the present case.