The main legal point established in the judgment is the interpretation of the provisions of the NDPS Act, particularly regarding the applicability of Section 37 to the recovery of non-commercial quantity of ganja and the considerations for granting regular bail.

JUDGMENT

Aman Chaudhary , J.(Oral) - The present petition has been filed under Section 439 Cr.P.C. for the grant of regular bail to the petitioner in respect of FIR No.544, dated 15.07.2022, under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'the NDPS Act'), registered at Police Station Old Industrial Area, Panipat, District Panipat.

2. Learned counsel for the petitioner submits that the contraband recovered from the petitioner is 4 Kg., 590 grams of ganja 'Leafs' were recovered from the plastic bag carried by the petitioner, which he submits is non-commercial as per the schedule in the NDPS Act. He further submits that challan has been presented against him and he has been in custody for the last three months. He has been falsely implicated in the present case by the police officials due to ulterior motive. He further submits that there is non-compliance of Section 42 of the NDPS Act, as the police party received secret information but the same was not forwarded to the senior officers immediately from the spot. He also submits that Section 37 of the NDPS Act is not attracted as the recovery falls under the non-commercial quantity. He further submits that the charges are yet to be framed and there are 18 witnesses.

3. Per contra, learned State counsel opposes the petition on the ground that nine more cases had been registered against the petitioner, four cases under the Excise Act, three cases under the NDPS Act and two cases under the IPC and the petitioner was apprehended at the spot. He, however does not controvert the fact that the recovery effected is non- commercial quantity; the challan has since been presented, however charges are yet to be framed; there are 18 witnesses in all; he is in custody for the last three months.

4. In rebuttal, learned counsel for the petitioner submits that out of the aforesaid 9 cases, petitioner stands acquitted in 8 cases and in one case he has been sentenced to pay a fine of Rs.3,000/-, the contraband involved therein being of small quantity.

5. I have heard learned counsel for the parties.

6. As regards to grant of regular bail in non-commercial quantity, a co-ordinate Bench of this Court in case of 'Adil vs State of Haryana' (in CRM-M-36774-2022, decided on 25.08.2022) held as under:-

'In the present case, all the four persons were alleged to be walking. The petitioner and Vishnu were stated to be jointly holding one plastic bag from which 10 kg. Ganja had been recovered. The co-accused Salim and Mukesh were also holding another plastic bag from which the recovery of 10 kg. Ganja had been effected. It would be a matter of debate as to whether the recovery is to be seen jointly and considered on aggregate basis or the recovery is to be seen separately i.e. in pairs, of the petitioner and Vishnu and that of co-accused Salim and Mukesh i.e. 10 kg. each. Even in case the entire recovery is to be taken jointly, as an aggregate recovery, then also the said recovery is 20 kg. of Ganja, which would also prima facie not fall within the ambit of commercial quantity, as it is only in case the quantity is more than what is stipulated in the table i.e. 20 kg., that the same would fall within the ambit of commercial quantity. Moreover, said 20 kg is the weight of the recovery, including the weight of the bags. Thus, the bar under Section 37 of the NDPS Act would not apply in the present case. The petitioner is in custody since 11.01.2022 and challan in the present case has been presented and there are total 11 witnesses, out of which, none have been examined and thus, the trial is likely to take time and the petitioner is not involved in any other case.'

7. Keeping in view the facts and circumstances of the case and the aforesaid judgment of a co-ordinate Bench of this Court, in particular, the recovery effected in this case being non-commercial; out of 9 cases registered against the petitioner, he has been acquitted in 8 cases and in the 9th case h