The court emphasized the need for judicious consideration of bail petitions for accused with criminal history and the implications of the quantity of the substance on bail conditions.

JUDGMENT

Anoop Chitkara, J. -

1. The petitioner apprehending arrest for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR captioned above has come up before this Court under Section 438 CrPC seeking anticipatory bail.

2. Although in paragraph 13, the petitioner claims to have no criminal antecedents, however, when confronted by State, then Ld. Counsel stated that instructions in this regard were not imparted by the petitioner but by his family members. In compliance to the court's observations, the petitioner has filed an affidavit about previous criminal antecedents. He says that FIRs for possessing 300 grams; 2.5 kg; and 3 kg of poppy husk were registered against him. This time the quantity alleged is 35.5 kg of poppy husk. 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.

3. Ld. counsel appearing for State opposes the bail and submits that the petitioner is a habitual offender and grant of bail encourages the drug peddlers, and the drug menace is spreading day by day.

REASONING:

4. The quantity allegedly involved is 35.5 kg of poppy husk. The substance finds mentioned at entry no. 110 of the table specifying small and commercial quantities, as per which the quantity greater than 50 kg falls in 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 does not apply in the present case.

5. 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.

6. 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.

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

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.

8. Given the fact that total quantity of poppy husk allegedly involved in all cases against the accused is less t