Advocates:
Advocate Appeared:
For the Appellant :Mr. Arshdeep Singh Brar, Advocate
For the Respondent: Mr. Akshay Kumar, AAG, Punjab

JUDGMENT :

Kuldeep Tiwari, J.

Through the instant petition filed under Section 439 Cr.P.C. the petitioner prays for grant of regular bail in case FIR No. 313 dated 30,.11.2022, under Section 21 of NDPS Act, registered at Police Station Division No. 5, District Police Commissionerate Ludhiana.

ALLEGATIONS AGAINST THE PETITIONER

2. The instant FIR has been registered on a complaint made by ASI Amarjit Kumar. The relevant extract of the complaint reads as under:-

"On 30.11.2022, ASI Amarjit Kumar, was present along with other police officials at barricading held at Midha Chowk, Near Bus Stand, Ludhiana, then at around 7.30 PM, a secret informer came and informed that the petitioner is in the business of selling of heroin and is coming to Ludhiana city by bus to supply heroin to Kochhar market side and if there is strict checking of the suspicious man, the petitioner can be apprehended with a large amount of heroin. Believing the information, to be true and reliable, a ruqa was sent for registration of the case. Thereafter, the petitioner was rounded up and on his search, 280 grams of heroin was recovered from his possession."

3. What transpired from the perusal of the FIR (supra) is that on the basis of secret information, the present petitioner was rounded up by the police, and thereupon, on his search, 280 grams of heroin was recovered, which led to registration of the instant FIR.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER

4. In asking for the relief for grant of regular bail, learned counsel for the petitioner, inter alia, submits that since the recovery is effected from the pocket of the accused, therefore, compliance of Section 50 of the NDPS Act, is mandatory, whereas, the consent memo served upon the petitioner is defective and clearly in violation of the principles laid down by the Hon'ble Supreme Court and this Court. He further submits that the petitioner has suffered incarceration of approximately one and a half year, as on today, and out of 14 witnesses cited by the prosecution in the final report, only 6 have been examined.

SUBMISSIONS OF THE LEARNED STATE COUNSEL

5. On the other hand, learned State counsel has opposed the grant of regular bail on the ground that the recovery which is effected from the present petitioner falls within the ambit of "commercial quantity". He further submits that as per the Schedule attached with the NDPS Act, any quantity over and above 250 grams of heroin would fall within the ambit of "commercial quantity", therefore, the rigor of Section 37 of the NDPS Act is duly applicable on the present petitioner, and until and unless, the condition as envisaged under Section 37 of the NDPS Act, is fulfilled, the petitioner cannot be enlarged on bail.

ANALYSIS

6. Before embarking upon the process of evaluating the arguments addressed by the learned counsels for the parties and penning down any opinion upon the instant petition, it is deemed imperative to capture an overview of some significant legal propositions.

7. "Bail is the Rule and Jail is an Exception". This basic principle of criminal jurisprudence was laid down by the Hon'ble Supreme Court, way back in 1978, in its landmark judgment titled "State of Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one of the most distinguished fundamental rights, as enshrined in Article 21 of the Constitution of India. Though the underlying objective behind detention of a person is to ensure easy availability of an accused for trial, without any inconvenience, however, in case the presence of an accused can be secured otherwise, then detention is not compulsory.

8. The right to a speedy trial is one of the rights of a detained person. However, while deciding application for regular bail, the Courts shall also take into consideration the fundamental precept of criminal jurisprudence, which is "the presumption of innocence", besides the gravity of offence(s) involved.

9. In "Gurbaksh Singh Sibbia v. Stat