The quantity of the substance, legal precedents related to bail in NDPS Act cases, and the individual circumstances of the accused are crucial factors in determining the grant of bail.

JUDGMENT :

Anoop Chitkara, J.

1. The petitioner apprehending arrest for selling 12.71 grams of heroin to Dara Singh, the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), from whose possession the Police had allegedly recovered the heroin, has come up before this Court under Section 438 CrPC seeking anticipatory bail in the FIR captioned above. The petitioner is presently on interim bail granted by this Court.

2. Para 13 of the bail petition and status report mentions the following criminal history:

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. The contention on behalf of the State is that the petitioner has criminal antecedents and if released on bail, would again indulge in the drug trade. Ld. Counsel appearing for State opposes the bail and submits that grant of bail encourages the drug peddlers and the drug menace is spreading day by day.

REASONING :

5. The quantity allegedly involved is 12.71 grams of heroin, 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 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. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice o