IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 17.03.2025 Kartik @ Noni ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Ms. Manjot Kaur, 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

0162 23.09.2023 Pasyana, District 22 of NDPS Act Patiala

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 15 of the bail petition, the accused declares that he has no criminal antecedents, however, as per paragraph 13 of the status report, the accused has following criminal antecedents:

Sr. No. FIR No. Date Offenses Police Station

1. 287 11.10.2021 21, 22 of NDPS Act Mandi Gobindgarh

2. 299 03.12.2022 21/61/85 of NDPS Act Kotwali

3. The facts and allegations are taken from the status report filed by the State. On 23.09.2023, based on a chance recovery, the Police seized 1045 loose intoxicant tablets which as per status report contained salt Diphenoxylate Hydrochloride weighing 66.88 grams from conscious possession of petitioner. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

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 there is no conscious possession because allegations are that the petitioner on seeing police party had thrown the bag. In the opinion of this Court, it is not a case where conscious possession can be disputed because the police cannot be disbelieved. Counsel for the petitioner further submits that the recovery is 66.88 grams whereas commercial quantity is 50 grams and is marginally above. The legislature did not mention word ‘marginally above’. 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 1 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)