An accused is not entitled to bail under Section 37 of the NDPS Act if the quantity of drugs recovered is more than the commercial quantity and the accused has a criminal history of NDPS Act cases.

Court No. - 84

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31221 of 2022

Applicant :- Pankaj Mishra @ Bittu

Opposite Party :- State of U.P.

Counsel for Applicant :- Vikash Chandra Tiwari

Counsel for Opposite Party :- G.A.

Hon'ble Sameer Jain,J.

Heard Sri Vikas Chandra Tiwari, learned counsel for the

applicant and Sri Tanay Kumar, learned AGA, for the State.

The instant bail application has been moved on behalf of the

applicant with the prayer to release him on bail in Case Crime

No.1046 of 2021, under Section 8/21 Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short the NDPS Act),

Police Station Sihani Gate, District Ghaziabad

As per the allegation from the possession of the applicant

130gm. Alprazolam powder was recovered.

Learned counsel for the applicant submits that applicant is

innocent. He has falsely been implicated in the present matter

and in fact nothing incriminating has been recovered from his

possession. He further submits that although commercial

quantity of Alprazoram powder is 100gm but slightly more than

commercial quantity of Alprazoram was recovered from his

possession. He further submits that earlier also applicant was

implicated in three other cases out of which two cases were of

NDPS Act but in both the cases he has already been released

on bail.

Learned counsel next submits that in the present matter

applicant is in jail since 10.8.2021. He further submits that at

the time of search mandatory provisions of Section 50 of NDPS

Act have not been complied with.

Per contra, learned AGA submits that from the possession of

applicant total 130 gm. of Alprazolam powder was recovered

which is more than the commercial quantity of 100 gm. and

further apart from the present case applicant is also having two

more cases of NDPS Act, therefore, considering the provisions

of Section 37 of NDPS Act, applicant is not entitled to be

released on bail.

I have heard learned counsel for the parties and perused the

record of the case.

From the perusal of record it appears that from the possession

of applicant 130gm of Alprazolam powder was recovered

which is more than commercial quantity and at the time of

search mandatory provisions of Section 50 NDPS Act were

duly complied with and option was given to applicant before

search that if he wants to give search either before the

Magistrate or Gazetted Officer, then his search may be

conducted by them but when he failed to give option then

ultimately his search was conducted. Further, applicant is also

having criminal history of two cases of NDPS Act and,

therefore, considering the provisions of Section 37 of NDPS

Act, in my view, applicant is not entitled to be released on bail.

Accordingly, the instant bail application is dismissed.

Order Date :- 4.1.2023

SKM

Digitally signed by :-

SHRAVANA KUMAR MISHRA

High Court of Judicature at Allahabad