IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 03.09.2025 Pronounced on: 24.09.2025 Shamsher Singh @ Kali ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Mandeep Singh Dhot, Advocate for Mr. Inder Pal Singh, Advocate for the petitioner.

Mr. Jasdev Singh Thind, DAG, Punjab.

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ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

014 13.01.2024 City Kharar, 18/29/61 of NDPS Act 1985 District SAS Nagar (Mohali)

1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

2. Per paragraph 12 of the bail petition, petitioner declares that he has no criminal antecedents.

3. The facts and allegations are taken from the reply filed by the State. On 13.01.2024, based on a chance recovery, the Police seized 2 kg 700 grams opium from the petitioner’s possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

4. The petitioner's counsel seeks bail on the grounds of prolonged pretrial custody.

5. 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. Counsel further submits that the petitioner would have no objection whatsoever to any stringent conditions that this Court may impose, including that if the petitioner repeats the offense or commits any non-bailable offense which provides for a sentence of imprisonment for more than seven years, or commits any offence under the NDPS Act, where the quantity involved is more than half of the intermediate, or commercial quantity, or violates S. 19, or 24, or 27-A of the NDPS Act, the State may file an application to revoke this bail before the concerned Court having jurisdiction over this FIR, which shall have the authority to cancel this bail, and may do so at their discretion, to which the petitioner shall have no objection.

6. The State’s counsel opposes bail and refers to the reply.

REASONING

7. As per paragraph 7 of the reply, the name of the contraband is opium, and its weight is 2.7 kg.

8. Dealing in 2 kg and 700 grams of opium in contravention of the NDPS Act, 1985, constitutes an offense under the following provisions and notifications: Substance Name "Opium" Quantity detained 2.7 Kg Punishable U/s S.18(c) of NDPS Act, 1985 Quantity type Commercial Drug Quantity in % to upper limit of

108.00%

Intermediate Drug's Small & Commercial Qty. suggested by Committee report Expert Committee Report dated 24.03.1995 Notification No. & date & 23.08.2001 (Small and Commercial)

Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No. & dated S.O.1055(E) 10/19/2001 Sr. No. 92 Common Name (Name of Narcotic Drug and Psychotropic Opium Substance (International non-proprietary name (INN)

Other non-proprietary name ******

Chemical Name And any preparation containing opium Small Quantity 25 Gram (i.e. equivalent to 0.025 Kg) Commercial Quantity > 2500 Gram (i.e. equivalent to 2.5 Kg)

0

9. 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 set forth by the Legislature under Section 37 of the NDPS Act.

10. Per the custody certificate dated 03.09.2025 the petitioner's custody in this FIR is of

01 year, 07 months & 15 days.

11. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section

37(1)(b)(ii) of the NDPS Act¹

12. The petitioner is entitled to bail because, in somewhat similar cases where the quantity involved was either greater than or close to the amount seized in the curre