In CRM-M-22042-2022- PUNJ HC- Under Section 2 (vii-a) of NDPS Act and Serial No. 23 of Table which deals with Entry relatable to cannabis, quantity ‘more’ than 1 kg is commercial quantity: P&H HC Justice Vikas Bahl [01-06-2022]

Read Order: Vikas Kumar @ Vicky Wagel v. State of Punjab

Monika Rahar

Chandigarh, June 24, 2022: While dealing with a petition seeking the grant of regular bail to an NDPS Act accused, the High Court of Punjab and Haryana has held that on a conjoint reading of Section 2 (vii-a) of the NDPS Act and Serial No. 23 (of the Table) dealing with the Entry relatable to cannabis, charas and Hashish, the quantity more/greater than 1 Kg would be commercial quantity.

Thus, Justice Vikas Bahl held that the recovered contraband (‘Charas’) which, when weighed along with the plastic polythene bag in which it was contained, was of 1 Kg, would fall under the category of non-commercial quantity.

“Thus, even if the fact that the plastic bag also carries some weight is not taken into account then, also the quantity recovered would be of non-commercial quantity and thus, the rigors of Section 37 of the NDPS Act would not be attracted in the present case“, held the Bench. 

Essentially, in this case, the Court was approached with the second petition filed under Section 439 of the Cr.P.C. for the grant of regular bail to him in an FIR registered under Section 20 of NDPS Act at Police Station D-Division, District Amritsar.

It was the case of the petitioner’s counsel that as per the FIR, the alleged recovery effected from the petitioner was of ‘Charas’ which when weighed along with the plastic polythene bag, weighed 1 kg. It was further submitted that even in case the weight of the alleged contraband ‘Charas’ was taken to be 1 Kg, then also, the same would be of non-commercial quantity and for the said purpose, he relied upon the definition of commercial quantity as contained in Section 2 Sub-section (vii-a) of the NDPS Act, 1985. 

Apart from the above-stated, the Counsel prayed for the grant of regular bail to the accused on the grounds that the petitioner was in custody since December 22, 2021; the challan was presented; and out of 11 witnesses, none were examined and thus, the trial was likely to take time to conclude. 

After considering the submissions of the Counsel, the Court opined, on a conjoint reading of Section 2 (vii-a) of the NDPS Act and Serial No. 23 of the table, that the quantity more than 1 Kg would be commercial quantity.

Further, the Court observed that even as per the prosecution case, the ‘Charas’ which was recovered, when weighed along with the plastic polythene bag, weighed 1 Kg.

Thus, Justice Bahl stated that even if the fact that the plastic bag also carries some weight is not taken into account then, also the quantity recovered would be of non-commercial quantity and thus, the rigors of Section 37 of the NDPS Act would not be attracted in the present case. 

Next, on the aspect of the incarnation of the petitioner, the Court observed that the petitioner was in custody since December 22, 2021 and there were 11 witnesses, none of whom were examined. Also, the fact that the petitioner was stated to be not involved in any other case, was noted by the Court. 

Also, the earlier petition for grant of regular bail was withdrawn by the Counsel with liberty to file a fresh petition after going through the Charge-sheet and thus, after going through the Charge-sheet, the above-stated grounds were raised.

Therefore, keeping in view the above-said facts and circumstances,the present petition was allowed and the petitioner was ordered to be released on bail on his furnishing bail / surety bonds to the satisfaction of the concerned trial Court/ Duty Magistrate and subject to him not being required in any other case.