JUDGMENT

Mr. Anoop Chitkara, J. -

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

2. In paragraph 8 of the bail petition, the accused declares that he has no criminal antecedents.

3. Petitioner's counsel prays for bail by imposing any stringent conditions. The petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

4. The State opposes bail.

Reasoning:

5. On November 7, 2021, the police had recovered 10 grams heroin and 100 intoxicating tablets from the petitioner. During interrogation, the petitioner also got recovered vehicles used for trafficking and also named the persons from whom he had purchased the contraband. On the disclosure of co-accused Amritpal, the police had arrested Bhinder Singh, from whom the police had recovered 1110 tablets of Alprazolam. On 13-12-2021, the petitioner was granted conditional bail that if the quantity falls under commercial, then he shall surrender. As per FSL, 100 tablets recovered from petitioner contained Tramadol Hydrochloride; whereas the tablets recovered from Bhinder had commercial quantity of Alprozolam and weighed 135.2 grams.

6. The quantity recovered from the petitioner was primafacie not commercial and given this, the rigours of Section 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 Section 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. A perusal of the order passed by the Special Judge dated 21-02-2023 reveals that there are no discussions of how the petitioner could have been attributed the tablets recovered from some other person, and surprisingly, the Special Judge dismissed the bail in a mechanical manner.

10. As per custody certificate dated 2-5-2023, the petitioner's custody is 10 months and 1 day.The petitioner is a first offender, and one of the relevant factors would be to provide an opportunity to course correct. Considering the facts mentioned above and other circumstances peculiar to this case, further pre-trial custody may not be justified at this stage.

11. 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