The substantial custody of the accused, the period of trial, and the quantity of contraband in relation to commercial quantity are key factors in granting regular bail under the Narcotic Drugs and Psychotropic Substances Act, 1985.

JUDGMENT

B.S. Walia, J. (Oral) - Prayer in the second petition under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in case FIR No.140 dated 23.10.2020, registered under Sections 21/25/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985, at Police Station City STF, District SAS Nagar, Mohali, CRM-M-20923-2021, filed earlier having been withdrawn vide order Annexure P/7 dated 26.10.2021, with liberty to file a fresh petition in accordance with law at appropriate stage, if the circumstances of the case so warranted.

2. Learned counsel contends that more than 5 months have lapsed and not even a single witness has been examined out of 20 prosecution witnesses, the petitioner is in custody since 23.10.2020, challan has been presented on 15.03.2021, charges have been framed besides co-accused, Varun, against whom identical allegations are there was granted regular bail vide order Annexure P/8 dated 18.11.2021, in 'CRM-M-28023-2021, that recovery of 300 grams of heroin is marginally above the commercial quantity i.e. 250 grams, trial is likely to take considerable period of time besides the petitioner was blessed with a son on 07.10.2020 and said child was born with one kidney, therefore, is required to be operated upon, that there is no male member or earning member in the family to look after the child.

4. Learned Addl. AG, Punjab, on the other hand, contends that the petitioner is involved in five other cases. In response thereto, learned counsel for the petitioner contends that the petitioner has been implicated in false cases as in three of the cases, the recovery is of 1.9 grams, 2 grams and 5 grams respectively while in two other cases, the recovery is of 10 grams and 20 grams of contraband respectively. The same has not been disputed by the learned Addl. AG, Punjab.

5. Learned Addl. AG, Punjab, by referring to the report U/s 42 of the NDPS Act, dated 23.10.2020, contends that a telephonic call was made to Mr. Vavinder Kumar, Deputy Superintendent of Police, on his mobile and he was apprised about the information given by the special informer, therefore there is compliance with Section 42(2), NDPS Act.

6. Learned counsel for the petitioner on the other hand refers to the decision of Hon'ble the Supreme Court in Rajinder Singh vs. State of Haryana, Criminal Appeal No.1051/2009 decided on 08.08.2011, as per which, conviction of the accused was set aside on the ground that information was not recorded in writing nor any information was sent to the superior officers as required under Section 42(2) of the NPDS Act and only a wireless message was sent to the DSP of the Police.

7. Learned counsel for the petitioner contends that although the State has placed before this Court a memo alleging compliance with Section 42 of the NPDS Act, yet the same is not part of the challan, therefore, its admissibility as also whether there was compliance with Section 42 of the NDPS Act would be a matter of trial.

8. Learned counsel has referred to the decision of a Coordinate Bench of this Court in CRM-M-54123-2021, in case titled as Sandeep vs. State of Haryana, decided on 10.01.2022, involving recovery of 17 quintals, 12 kilograms and 760 grams of ganja, i.e. commercial quantity being 20 kilograms and above. Relevant extract of the aforementioned decision is reproduced as under:-

In Criminal Appeal No.965 of 2021 titled as Dheeren Kumar Jaina v. Union of India, the Hon'ble Supreme Court in a case where allegation in the chargesheet was with respect to 120 kg of contraband i.e. "ganja", thus, being of commercial quantity, was pleased to grant bail after setting aside the order of the High Court where the said application for grant of regular bail had been rejected.

A co-ordinate Bench of this Court in a detailed judgment titled as Ankush Kumar @ Sonu v. State of Punjab reported as 2018 (4) RCR (Criminal) 84, had considered the provision of Section 37 of the NDPS Act in extenso and had granted bail in a case which