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.’