The main legal point established in the judgment is that the recovery of contraband from each accused should be considered individually, not collectively, and the categorization of the quantity of contraband is crucial in determining the applicability of relevant sections of the NDPS Act.

JUDGMENT

Aman Chaudhary, J. - The present petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case FIR No.61, dated 14.4.2022, registered under Section 18 of NDPS Act (Section 29 NDPS Act added later on) at Police Station Baghapurana, District Moga.

2. Succinctly, the facts of the case are that the petitioner was apprehended by ASI Varinder Kumar, while he was driving a car bearing registration No. PB-65-H-3183 and found in conscious possession of one kg. Opium, wrapped in an envelop without any permit or license and also Rs.400/- was recovered from the petitioner. After following the due procedure of the recovery under NDPS Act, the petitioner was arrested on 14.4.2022. He made a disclosure statement on 15.4.2022, wherein he specifically told to the police about time, place, recovery and registration of vehicle allegedly used in the crime by co-accused Lakhwinder Singh. After investigation in the matter, final report under Section 173 Cr.P.C. has been presented in the Court.

3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in the present case. The alleged recovery of 1 kg opium falls under the category of non-commercial quantity as per the Schedule appended with the NDPS Act. However, the learned Judge, Special Court, Moga while declining the anticipatory bail of the petitioner clubbed the recovery effected from co-accused Lakhwinder Singh, which was 9 kgs of opium. He further submits that no recovery is to be effected from the petitioner. He is in custody since 14.4.2022. Final report under Section 173 Cr.P.C. stands presented. He further submits that the petitioner is not involved in any other case.

4. On the other hand, learned counsel for the State opposes the prayer of the petitioner. He further submits that the total quantity of the contraband recovered from both the accused is to be considered and thus, in the present case, the recovery effected from both the accused are 10 kgs of opium, which falls under the category of commercial quantity and thereby attracts bar of Section 37 of NDPS Act to grant of bail to the petitioner.

5. I have heard the learned counsel for the parties.

6. In CRM-M-33684-2020 titled as 'Amit Dhanak Vs. State of Haryana' decided on 11.01.2021, a Coordinate Bench of this Court in similar set of facts, has held as under:

'Considering the facts; that in the FIR specific recovery has been attributed to all the three accused of 16Kgs of Ganja Patti each; they are in custody since August, 2020; no recovery is to be made; the individual recovery is of non commercial quantity and conclusion of trial would take time, both the petitions are allowed. The petitioners are ordered to be released on bail subject to their furnishing surety/bail bonds to the satisfaction of the learned trial Court/Duty Magistrate concerned. "

7. Similarly, the Hon'ble Supreme Court in Amarsingh Ramjibhai Barot Vs. State of Gujarat 2005 AIR (Supreme Court) 4248 held as under:-

'A number of contentions were urged in the High Court by the appellant in support of his appeal. It was contended that the conviction was liable to be set aside as there was non-compliance with the provisions of section 42(2), 50, 52 and 57 of the NDPS Act. There is no substance in this contention. The High Court, however, was of the view that the conviction of the appellant under sections 17 and 18 read with section 29 of the NDPC Act was not correct. On the other hand, the High Court came to the conclusion that the appellant was liable to be convicted under Section 21(c) and also under Section 21(c) read with Section 29 of the Act, for individually being in possession of 920 grams and for being jointly, in conspiracy with the deceased, in possession of 4.250 kgs. of the prohibited substance recovered. In the view of the High Court, the total amount of prohibited substance recovered (personally from the appellant and also from the joint possession of the two accused) being mor