The main legal point established in the judgment is that the quantity of the substance involved and the petitioner's criminal antecedents are crucial factors in determining the applicability of bail provisions under the NDPS Act.

JUDGMENT

Anoop Chitkara, J.

1. On being named by the co- accused in his custodial interrogation as the seller of the contraband, the petitioner, apprehending arrest for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) as per the FIR captioned above had come up before this Court under Section 438 CrPC seeking anticipatory bail.

2. In paragraph 10 of the bail application, the accused declares the following criminal antecedents:

 3. The police had recovered 10 kgs of poppy husk from Gurmel Singh, who during his interrogation named Ranjeet Singh as its seller, who further disclosed that the petitioner had sold the poppy.

4. 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.

5. While opposing the bail, including the interim protection, Ld. counsel representing the State contends that given the criminal past, the accused is likely to indulge in crime once released on bail.

REASONING:

6. The substance involved in the present case is poppy straw, and weighs 10 kilograms. Entry no. 110 of the table specifying small and commercial quantities specifies the quantity greater than 50 kilograms as commercial quantity and lesser than 1000 grams as small.Thus, the quantity allegedly involved in this case is not commercial. Given this, the rigours of S. 37 of the NDPS Act do apply in the present case.

7. 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.

8. 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.

9. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds,

[10]. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.

10. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed,

While consid