Commercial Quantity – Quantity Greater than the Quantity Specified in the NDPS Act : High Court of Shimla

 Hig h C o urt of H.P on 20 03 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No.3921Date of Decision: 19 th March 2021.Pratyush Thakur ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 NO For the petitioner:Mr. Rajiv Rai and Mr. Mukesh Sharma Advocates. For the respondent:Mr. Nand Lal Thakur Additional Advocate General and Mr. Rajat Chauhan Law Officer for the State. FIR No.DatedPolice StationSections29 of202129.1.2021Sundernagar District Mandi H.P.20 and 29 of the ND&PS Act. Anoop Chitkara Judge wherein the Full bench holds that a person can directly apply for an anticipatorybail or regular bail to the High Court without first invoking the jurisdiction of theSessions Judge.1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 20 03 HCHP 2 3.Mr. Rajiv Rai learned counsel for the petitioner submits that the petitioner hasno criminal history. The status report also does not mention any criminal past of theaccused.4.Briefly the allegations against the petitioner are that the police had recovered704 gms of Charas fromAyush BhartiArvind Sharma which led toregistration of FIR mentioned above. In the investigation the accused told to theinvestigator that when they had gone to purchase the Charas the present petitionerused to call him and asked him to procure the contraband for him as well. Theinvestigation also reveals some bank account transactions to the same effect. Thestatus report does not mention about any criminal history. Given above the petitionis allowed with a strict condition that the petitioner shall join the investigation as andwhen called upon to do so. 5.Ld. Counsel for the petitioner contends that the custodial investigation wouldserve no purpose whatsoever. The incarceration before the proof of guilt would causegrave injustice to the petitioner and family.6.While opposing the bail the alternative contention on behalf of the State is thatif this Court is inclined to grant bail such a bond must be subject to very stringentconditions.7.Section 2of the NDPS Act defines commercial quantity as the quantitygreater than the quantity specified in the schedule. S. 2defines a smallquantity as the quantity less than the quantity specified in the table of the NDPS Act.The remaining quantity falls in an undefined category which is now generally calledas intermediate quantity. All Sections in the NDPS Act which specify an offense also mention that minimum and maximum sentence depending upon the quantity ofthe substance. Commercial quantity mandates minimum sentence of ten years ofimprisonment and a minimum fine of Rupees One hundred thousand and bail issubject to the riders mandated in S. 37 of NDPS Act.8.The contraband involved is 704 grams of Charas which prima facie is not aCommercial quantity. As such the rigors of Section 37 of the NDPS Act shall notapply in the present case. Resultantly the present case is similar to other instances of Hig h C o urt of H.P on 20 03 HCHP 3 the grant of bail in a penal offence. In the facts and circumstances peculiar to thiscase the petitioner makes out a case for release on bail.9.In Sami Ullaha v Superintendent Narcotic Control Bureau 16 SCC471 the Hon’ble Supreme Court holds that in intermediate quantity the rigors of theprovisions of Section 37 may not be justified. In Sunny Kapoor v State of HP CrMPM 21620 this Court observed that when the quantity is lessthan commercial the rigors of Section 37 of the NDPS Act will not attract andfactors become similar to bail petitions under regular statutes. Thus when themaximum sentence cannot exceed ten years and the accused is yet to be provedguilty the grant of bail is normal unless the Prosecution points towards theexceptional circumstances negating the bail. 10.The possibility of the accused influencing the investigation tampering withevidence intimidating witnesses and the likelihood of fleeing justice can be takencare of by imposing elaborative and stringent conditions. In Sushila Aggarwal5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to theevidence produced the Courts can impose restrictive conditions. In Sumit Mehta v.State of N.C.T. of Delhi and shall furnish two sureties of a similar amount to the satisfaction of theInvestigator. Before accepting the sureties the Attesting Officer must satisfy that incase the accused fails to appear in Court then such sureties are capable to producethe accused before the Court keeping in mind the Jurisprudence behind the sureties which is to secure the presence of the accused. 14.In the alternative the petitioner may furnish aforesaid personal bond andfixed deposit(s) for Rs. Twenty five thousand onlymade in favour of"Chief Judicial Magistrate District Mandi H.P. " a)The arresting Officer shall give a time of ten working days to enable theaccused to prepare a fixed deposit.b)Such Fixed deposits may be made from any of the banks where the stakeof the State is more than 50% or any of the stable private banks e.g. HDFCBank ICICI Bank Kotak Mahindra Bank etc. with the clause of automaticrenewal of principal and liberty of the interest reverting to the linked account. c)Such a fixed deposit need not necessarily be made from the account ofthe petitioner and need not be a single fixed deposit. d)If such a fixed deposit is made in physical form i.e. on paper then theoriginal receipt shall be handed over to the concerned Court. e)If made online then its printout attested by any Advocate and ifpossible countersigned by the accused shall be filed and the depositor shallget the online liquidation disabled. f)The petitioner or his Advocate shall inform at the earliest to theconcerned branch of the bank that it has been tendered as surety. Suchinformation be sent either by e mail or by post courier about the fixed deposit whether made on paper or in any other mode along with its number as well asFIR number. g)After that the petitioner shall hand over such proof along withendorsement to the concerned Court. h)It shall be total discretion of the petitioner to choose between suretybonds and fixed deposits. It shall also be open for the petitioner to apply forsubstitution of fixed deposit with surety bonds and vice versa. i)Subject to the proceedings under S. 446 CrPC if any the entire amountof fixed deposit along with interest credited if any shall be endorsed returned Hig h C o urt of H.P on 20 03 HCHP 5 to the depositor(s). Such Court shall have a lien over the deposits up to theexpiry of the period mentioned under S. 437 A CrPC 1973 or until dischargedby substitution as the case may be. 15.The furnishing of the personal bonds shall be deemed acceptance of thefollowing and all other stipulations terms and conditions of this bail order:a)The petitioner to execute a bond for attendance in the concernedCourt(s). Once the trial begins the petitioner shall not in any manner try todelay the proceedings and undertakes to appear before the concerned Courtand to attend the trial on each date unless exempted. In case of an appeal onthis very bond the petitioner also promises to appear before the higher Court interms of Section 437 A CrPC.b)The attesting officer shall on the reverse page of personal bonds mention the permanent address of the petitioner along with the phonenumber(s) WhatsApp numbere mailand details of personalbank account(s)and in case of any change the petitioner shallimmediately and not later than 30 days from such modification intimate aboutthe change of residential address and change of phone numbers WhatsAppnumber e mail accounts to the Police Station of this FIR to the concernedCourt.c)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses thePolice officials or any other person acquainted with the facts of the case todissuade them from disclosing such facts to the Police or the Court or totamper with the evidence.d)The petitioner shall join the investigation as and when called by theInvestigating Officer or any Superior Officer and shall cooperate with theinvestigation at all further stages as may be required. In the event of failure todo so it will be open for the prosecution to seek cancellation of the bail.Whenever the investigation occurs within the police premises the petitionershall not be called before 8 AM and shall be let off before 5 PM and shall notbe subjected to third degree indecent language inhuman treatment etc.e)In addition to standard modes of processing service of summons theconcerned Court may serve or inform the accused about the issuance ofsummons bailable and non bailable warrants the accused through E Mailand any instant messaging service such as WhatsApp etc.No. 3 2020 I.A. No. 48461 2020 July10 2020]: i.At the first instance the Court shall issue the summons. ii.In case the petitioner fails to appear before the Court on the specified Hig h C o urt of H.P on 20 03 HCHP 6 date in that eventuality the concerned Court may issue bailablewarrants. iii.Finally if the petitioner still fails to put in an appearance in thateventuality the concerned Court may issue Non Bailable Warrants toprocure the petitioner s presence and may send the petitioner to theJudicial custody for a period for which the concerned Court may deemfit and proper to achieve the purpose.16.During the trial s pendency if the petitioner repeats or commits any offencewhere the sentence prescribed is more than seven years or violates any condition asstipulated in this order the State may move an appropriate application before thisCourt seeking cancellation of this bail. Otherwise the bail bonds shall continue toremain in force throughout the trial and after that in terms of Section 437 A of theCrPC.17.Any Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions of this bailorder in vernacular and if not feasible in Hindi.18.In case the petitioner finds the bail condition(s) as violating fundamental human or other rights or causing difficulty due to any situation then formodification of such term(s) the petitioner may file a reasoned application beforethis Court and after taking cognizance even to the Court taking cognizance or thetrial Court as the case may be and such Court shall also be competent to modify ordelete any condition.19.This order does not in any manner limit or restrict the rights of the Police orthe investigating agency from further investigation per law.20.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.21.In return for the protection from incarceration the Court believes that theaccused shall also reciprocate through desirable behavior.In the facts and circumstances peculiar to this case the petition stands allowed Hig h C o urt of H.P on 20 03 HCHP 7 in the terms mentioned above.Copy Dasti. Anoop Chitkara Judge.March 19 2021

Summary: The NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. S. 2 (xxiii-a) defines a small quantity as the quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. This remarkable judgement was passed by Shimla High Court in the case of Pratyush Thakur v. State of [H.PCr.MP(M) No.390 of 2021] by The Hon’ble Mr. Justice Anoop Chitkara. The Petitioner filed petition for anticipatory bail, apprehending arrest under Section 438 CrPC, for joint possession of 704 grams of Charas, which is an intermediate quantity. The police had recovered 704 gms of Charas from petitioner. In the investigation, the accused told that when they had gone to purchase the Charas, they used to call him and asked him to procure the contraband for him as well. The incarceration before the proof of guilt would had caused grave injustice to the petitioner and family. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. The contraband involved is 704 grams of Charas, which prima facie is not a Commercial quantity. As such, the rigors of Section 37 of the NDPS Act shall not apply in the present case. In Sami Ullaha v Superintendent Narcotic Control Bureau, and In Sunny Kapoor v State of HP, Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract. In Sumit Mehta v. State of N.C.T. of Delhi, Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between the individual’s right to personal freedom and the right of investigation of the police. The court was of the opinion that, ‘the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000)’ The petition was disposed of by honourable court stating, ‘ In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.’ Click here to read more-