The main legal point established in the judgment is that the applicability of bail under the NDPS Act depends on the categorization of the quantity of contraband and the specific circumstances of the case, as well as the need to consider a variety of factors justifying the grant or refusal of bail.

JUDGMENT

Anoop Chitkara, J.

1. The petitioner under arrest for violating the provisions as mentioned above of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), per the FIR captioned above, has come up before this Court under Section 439 CrPC seeking bail on the ground that the quantity of contraband is less than commercial and rigors of S. 37 of NDPS Act do not apply.

2. In paragraph 16 of the bail petition, the accused declares that he has no criminal antecedents.

3. On receipt of information that the persons who selling injections containing intoxicants would be going on their bike. If picketing is installed, they can be apprehended. Out of recovery of 13 injections only one injection was allegedly recovered from the petitioner. The grievance of the petitioner is that he has been attributed remaining injections, which were in possession of the co-accused and he had prima facie not aware about that.

4. Learned Senior counsel for the petitioner submits that although total 30 injections of Buprenorphine were recovered but only one injection was recovered from the petitioner, which falls in small quantity. He further contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

5. Ld. counsel representing the State opposes bail.

REASONING:

6. The substance involved in the present case is Buprenorphine (Omgesic/ Leegesic). Entry no. 169 of the table specifying small and commercial quantities specifies the quantity greater than 20 grams as commercial quantity and lesser than 1 gram as small, and the liquid certainly weighs less than commercial quantity. Given this, the rigours of S. 37 of the NDPS Act do not 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. The petitioner is a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. Even a primafacie perusal of paragraph 5 of the bail petition needs consideration for bail.The petitioner has already been in custody since Mar 8, 2022, i.e., for more than two months, and considering the facts mentioned above and other circumstances peculiar to this case, further pre-trial custody may not be justified at this stage.

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. 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 sati