IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 24.02.2025 Anil ...Petitioner Versus State of Punjab ... Respondent CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT Present : Mr. Sandeep Verma, Advocate, for the petitioner.

Mr. M.S. Bajwa, DAG, Punjab. N.S.SHEKHAWAT , J. (Oral)

1. The petitioner has filed the instant petition under Section 439 of the Cr.P.C. with a prayer to grant a regular bail in case FIR No.38 dated 07.07.2023 registered under Sections 21(c) and 29 of the NDPS Act, 1985 at Police Station Bajakhana, District Faridkot.

2. Learned counsel for the petitioner contends that as per the prosecution story, the petitioner alongwith other two co-accused, namely, Raj Kumar and Robin were apprehended in a Fortuner car, which was allegedly driven by the petitioner. He further contends that alleged recovery of 400 grams of heroin was effected from the Fortuner car without following the due process of the law and the mandatory provisions of Section 50 of the NDPS Act were not complied by the police and the petitioner deserves to be released on bail. The petitioner is in custody since 07^th July 2023 and challan has already been presented against him. The petitioner was never involved in any other crime and the conclusion of the trial may taken quite a long time.

3. On the other hand, learned State counsel has vehemently opposed the submissions made by the learned counsel for the petitioner on the ground that 400 grams of heroin was recovered from the car of the petitioner and the said quantity falls within the purview of “commercial quantity” and the bar contained under Section 37 of the NDPS Act would apply to the facts of the present case.

4. I have heard learned counsel for the parties and perused the record.

5. While considering the grant of concession of bail in the cases involving the recovery of “commercial quantity” of contraband from the accused, the Hon’ble Supreme Court has held in the matter of State of Kerala etc. Vs. Rajesh Etc., 2020(1) RCR (Criminal)

818: 2020 AIR Supreme Court 721 as follows:-

18. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite.

That provision makes the offences under the Act cognizable and non−bailable. It reads thus:−

“37. Offences to be cognizable and non−bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity]

shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub−section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.”

(emphasis supplied)

19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(4) RCR (Criminal) 93: 1999(9) SCC 429, it has been elaborated as under:−

“7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne