The main legal point established in the judgment is that offences under Section 21(a), 22(a), and 29(1) of the NDPS Act, involving small quantities, are cognizable and bailable, as per the interpretation of the bail provisions and the classification of offences under the Code of Criminal Procedure, 1973.

This is an application filed under Section 439 of the Code of Criminal Procedure, 1973 by Sri Bapan Roy being the cousin brother of Subhra Saha, the accused person in custody. The accused, Subhra Saha being arrested on 19.06.2018 in connection with Manu P.S. Case No. 19 of 2018 registered under Section 21(a)/22(a)/29(1) of the NDPS Act 1985 has prayed for grant of bail.

2. Heard Mr. S. Sarkar, learned counsel appearing for the petitioner as well as Mr. A. Roy Barman, learned Addl. P.P., appearing for the State respondent.

3. The prosecution story, in brief, is as under:

On 19.06.2018 Sri Ashish Kumar Das, SI of Police, Manu P.S., submitted a written complaint to the effect that on 19.06.2018 at 1800 hours while the complainant along with staff was performing vehicular mobile duty on Assam-Agartala Road at that time on the basis of some secret information went to Masli Bazar along with SDPO, Manu. After reaching there, and observing all legal formalities they conducted search on the arrested person thoroughly in presence of independent witnesses. During the course of search operation the police found 14 numbers of small plastic transparent container of street heroin (Brown Sugar) without mark (red colour tap) from the possession of the accused person and after that, on being asked he stated that he collected the said heroin from the possession of the accused person No-2 with intent to sell at Masli area. Thereafter, preliminary identification test was conducted in presence of SDPO, Manu and independent witnesses and the result became positive for heroin (Brown Sugar) and regarding carrying of Brown Sugar he could not provide any valid document. After that, as per direction of SDPO, Manu, seized the drugs substances from the possession of the accused person and also seized one Samsung mobile phone by preparing seizure list in presence of independent witnesses. Thereafter, the informant along with SDPO, Manu, collected digital weight machine and weight the seized items of heroine and found total 6 grams and 900 mg. (including plastic transparent container) and after seizing the contraband put into an envelop and sealed the same with gala, in presence of SDPO, Manu and witnesses at the spot. Pursuant to the lodging of this F.I.R/Ejahar, the case has been registered as Manu P.S. Case No. 19/18 under Section 21(a)/22(a)/29(1) of NDPS Act 1985 and investigation was started.

4. The accused person was arrested during the course of investigation and was produced before the learned Judicial Magistrate 1st Class, Kamalpur, Unakoti, Tripura, who sent the accused person to judicial custody till 25.06.2018. Then, a bail application was moved before the learned Special Judge, Kamalpur, Unakoti, Tripura on 25.06.2018, but it was not moved due to absence of learned counsel for the accused person in custody. The accused person was further remanded to judicial custody till 24.07.2018.

5. Being aggrieved by the order dated 25.06.2018 passed by learned Special Judge, Kamalpur, Unakoti Tripura, the present bail application has been moved before this Court.

6. The learned counsel for the petitioner submits that the accused person is totally innocent. His further submission is that even assuming that brown sugar as alleged being seized from the possession of the accused person, then also it comes within the purview of definition of “small quantity”. The accused person has been arrested for allegedly committing offences under Section 21(a)/22(a)/29(1) of NDPS Act 1985, and in view of the amendment in the NDPS Act in the year 2001 the stringent condition for granting of bail as prescribed under Section 37(1)(b) are applicable only to the offences punishable under Section 19, 24, 27(a) and also to the offences involving commercial quantity. The said conditions are not applicable to other punishable provisions contemplated under the NDPS Act. He further contends that Section 37 does not contemplate all the offences under the NDPS Act are non-b