IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 17.03.2025 Gurwinder Singh @ Satta ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Naveen Sharma, Advocate for the petitioner.

Mr. Gurpartap S. Bhullar, A.A.G., Punjab.

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ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

94 20.06.2024 Special Task Force, 15-C of NDPS Act District Bathinda

1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, seeking regular bail.

2. In paragraph 14 of the bail petition, the accused declares that he has no criminal antecedents, whereas as per para paragraph 4 (D) of the status report, the accused has following criminal antecedents:

Sr. No. FIR No. Date Offence Police Station

1. 181 27.11.2023 15-b of NDPS Act Sadar Kotkapura

3. The facts and allegations are taken from the status report filed by the State. On 20.06.2024, based on a chance recovery, the Police seized 54 kgs of poppy husk from possession of petitioner and co-accused. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

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

5. The State’s counsel opposes bail and refers to the status report.

6. Counsel for the petitioner submits that the recovery is marginally higher than the commercial quantity i.e. 54 kgs whereas commercial quantity is 50 kgs. The legislature did not mention word ‘marginally above’. Counsel for the petitioner further submits that petitioner has no criminal antecedents. Section 37 of NDPS Act does not give any relaxation to first offenders. These are not the grounds to grant bail to the petitioner.

7. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

8. Section 37¹ of the NDPS Act mandates under sub-section (1) (b) of section 37 that no person accused of an offense punishable for offenses involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.

9. The State’s Counsel argues that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions.

10. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories,