Section 37 of the Narcotic Drugs and Psychotrophic Substances Act 1985 (NDPS) makes offences cognizable and non-bailable, however this is only applicable in cases with commercial quantities of the substance and not for intermediate or small quantities. A single member bench of Justice Anoop Chitkara of the Himachal Pradesh High Court passed a judgement in the case of Arvind Kumar v The State of Himachal Pradesh [Cr.MP(M) No: 990 of 2021] on 4th June 2021 related to the possession of intermediate quantities of narcotic drugs.
The petitioner, Arvind Kumar is a habitual offender under the Narcotic Drugs and Psychotrophic Substances Act 1985; he was arrested on 9th June 2021 for possession of 334 grams of Charas. In the case of Charas, only quantities above 1kg can be considered as a commercial quantity. The petitioner approached the high court for bail in this matter contending that incarceration before his guilt was established would be a grave injustice to both him and his family and that the court should grant him bail as the matter was still being adjudicated upon. Whereas the state contended that his record as a habitual offender should be considered and he should be denied bail due to the same.
The court cited the case of Sami Ullaha v Superintendent Narcotic Control Bureau, [(2008) 16 SCC 471] where the Supreme Court declared that rigours of the provisions of Section 37 of the NDPS act cannot to be justified in cases of intermediate possession of narcotic substances. The case of Sunny Kapoor v State of Himachal Pradesh [CrMPM 2168 of 2020] was also cited, where it was established that any quantity that is less than commercial does not warrant the rigours of Section 37 of the NDPS meaning the grant of bail is acceptable and the accused cannot be sentenced to more than 10 years of imprisonment. The court noted that the quantity of charas which the petitioner was in possession of was only around one third of the commercial quantity and still fell under intermediate quantity, however decided to impose certain conditions to the bail granted such as bond, sureties, regular attendance in court and full cooperation in the investigation of the case.
Justice Anoop Chitkara concluded that “Given the above reasoning, the court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973”.
