The court considered the quantity of the substance involved, the petitioner's criminal history, and age, and granted bail. The court also imposed stringent conditions to prevent any influence on the investigation.

JUDGMENT :

Anoop Chitkara, J.

1. The petitioner apprehending arrest for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR captioned above has come up before this Court under Section 438 CrPC seeking anticipatory bail.

2. As per bail application and the response of the State, one more case under Section 447 & 427 IPC is pending against the petitioner.

3. Ld. Counsel for the petitioner contends that the custodial investigation would serve no purpose whatsoever, and the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

4. On instructions from ASI Shishpal, learned counsel appearing for State opposes the bail and submits that the petitioner has criminal antecedents and the drug menace is spreading rapidly, and bail encourages the drug peddlers.

REASONING:

5. The quantity allegedly involved is 20 grams of heroin (Diacetyl morphine), which is less than commercial quantity. Given this, the rigours of S. 37 of the NDPS Act do not apply in the present case.

6. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.

7. In Sami Ullaha v. Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon’ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified.

8. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.

9. Given the accused's age and other factors and circumstances peculiar to this case, it may be appropriate to afford the petitioner a final opportunity to course-correct. Thus, the previous criminal history of the petitioner is not being considered strictly at this stage as a factor for denying bail because of the nature of previous offences. Furthermore, a prima facie perusal of paragraph 3 of the bail petition reveals sufficient grounds for granting bail.

10. In Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. I