JUDGMENT Kuldip Chand Sood, J.—I propose to dispose of these two petitions under Section 439 of the Code of Criminal Procedure, for the grant of bail as both the petitions raise common question of law and arise out of similar facts. 2. In Takeo Takahashi v. State of Himachal Pradesh, Cr.M.P (M) No. 1476 of 2001, the petitioner is a Japanese National and is a Karate Instructor by profession. He was arrested on 3rd December, 2001 in case FIR No. 562 of 2001 dated 3rd December, 2001, registered with Police Station, Kullu, for an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as "the Act. According to prosecution case, HC Chaman Lal of Police Chowki, Bhuntar, alongwith other police officials was on routine patrol, at about 6.10 p.m. at Bajaura Bazar, he received source information that a person sitting on seat No. 27 in bus No. HP-01-2042 was carrying "Charas". This bus was bound to Delhi from Manali. HC Chaman Lal reduced the information in writing and sent the same to his superior officers. He reached Check Post, Bajaura at about 6.30 p.m. In the meanwhile, bus No. HP-01-2042 of Harison Travels came from Bhuntar side. The bus was signalled to be stopped. The police party entered the bus. Petitioner, who was sitting at seat No. 27 got perplexed. He was carrying a bag in his lap. He was informed by the police that there is an information that he was carrying "Charas". He was given option of being searched in the presence of a Magistrate or a Gazetted Officer. The petitioner consented to be searched by the police. On the search of the bag, police recovered "Charas" in the shape of sticks packed in polythene. "Charas" so recovered was weighed and found to be 200 grams. After completing formalities accused was arrested and informed about the grounds of his arrest. 3. In Peter Bortolotti v. State of Himachal Pradesh, Cr. M.P. (M) No. 1477 of 2001, on 14.12.2001, petitioner Bortolotti, an Italian National, was travelling in bus of Himachal Road Transport Corporation No. HP-34-3186, which was bound to Haridwar from Manali. The bus was stopped by Sub Inspector/Station House Officer Kaur Singh of Police Station, Kullu, at Bajaura Barrier. The bus was checked. Petitioner was sitting on seat No. 5 and was carrying a bucket in his lap. The bus was stopped by Sub Inspector/Station House Officer Kaur Singh of Police Station, Kullu, at Bajaura Barrier. The bus was checked. Petitioner was sitting on seat No. 5 and was carrying a bucket in his lap. The bucket was opened which contained rice pullow. The pullow was stirred and "Charas" in shape of sticks, was seen and recovered from the bucket. Accused was arrested and informed about the ground of arrest. • 4. The case of the petitioners in both the petitions is that they have falsely been implicated. 5. The bail is sought primarily on the ground that the Act has substantially been amended by amendment Act No. 9 of 2001 which has come into force w.e.f. 2nd October, 2001. The bail provision, in the Act after amendment has been liberalised so far the drug addicts are concerned. 6. Perusal of the Statement of Objects and Reasons of the Amendment Act 9 of 2001 shows that object of the amendment was to provide severe punishment for the drug traffickers, but at the same time take reformative approach towards drug addicts. It was noticed that strict bail provisions under the Act adds to the misery of the drug addicts. The amendment, amongst others sought to rationalise the sentence structure to ensure that while drug traffickers who traffic in large quantity of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to lesser punishments. 7. The relevant part of the Statement of Objects and Reasons. Amendment Act 9 of 2001 reads: "The Narcotic Drugs and Psycho tropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of a minimum ten years rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences". (Emphasis supplied) 8. Section 20 of the Act provides for the punishment for contravention in relation to cultivation, production, manufactures, possession etc. of the cannabis plant and cannabis (charas) respectively. Section 20 reads: "20. Punishment for contravention in relation to cannabis plant and cannabis.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:— (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,— [(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),— (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees]. 9. 9. It may be seen that if a person is involved in possessing small quantity of "Charas", he, on conviction, is liable to be sentenced to suffer rigorous imprisonment for a term which may extend to six months or with fine which may extend to ten thousand rupees, or with both. 10. Under Clause-C of Section 20, if the person is convicted for possessing commercial quantity of "Charas", he is liable to be sentenced to suffer rigorous imprisonment for a term which shall not be less than ten years but which may extend to 20 years and also liable to fine which shall not be less than one lakh rupees and which may extend up to two lakh rupees. 11. Under Clause-B of Section 20, if a person is in possession of a quantity less than the commercial quantity but larger than small quantity, then such a person is liable to be sentenced to suffer rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 2(viia), defines: " "Commercial quantity", to mean any quantity greater than the quantity specified by the Central Government by notification in the official Gazette. Similarly, Section 2(xxiiia) defines: "small quantity", to mean any quantity lesser than the quantity specified by the Central Government by notification in the official Gazette". Section 2(iii) defines: "cannabis (hemp)" to mean Charas, Ganja and any mixture with or without any neutral material, of any of either Charas or Ganja or any drink prepared therefrom". 12. The Central Government by a notification, in exercise of the power conferred by Clauses (viia) and (xxiiia) of Section 2 of the Act, dated 19th October, 2001, in supersession to the previous notifications, specified the small quantity and commercial quantity in respect of the Narcotic Drugs and Psychotropic Substances Act mentioned in the table for the purposes of these clauses. Entry No. 23 of the table pertains to cannabis and cannabis resin i.e. Charas, Hashish extracts and tinctures of cannabis The small quantity is specified to be 100 grams and commercial quantity is specified to be one kilogram. 13. The petitioner Takeo Takahashi, according to the case of the police, was found in possession of 200 grams of "Charas". Entry No. 23 of the table pertains to cannabis and cannabis resin i.e. Charas, Hashish extracts and tinctures of cannabis The small quantity is specified to be 100 grams and commercial quantity is specified to be one kilogram. 13. The petitioner Takeo Takahashi, according to the case of the police, was found in possession of 200 grams of "Charas". Thus, under Section 20(B) of the Act he was involved in carrying "Charas", which was lesser than the commercial quantity and is liable to be punished, if the case is proved against him, to rigorous imprisonment for a term which may extend to ten years and a fine which may extend to one lakh rupees. 14. Similarly, petitioner, Peter Bortolotti in Cr.M.R (M) No. 1477 of 2001, was allegedly carrying 150 grams of "Charas" which is less than the commercial quantity but not less than the quantity specified as lesser quantity under Section 2(xxiiia) read with entry No. 23 of the notification and therefore, he too is liable, if convicted, to be punished to rigorous imprisonment for a term which may extend to ten years and a fine which may extend to one lakh rupees. 15. Rigor of Section 37, relating to bail for offences under the Act, has also been relaxed by the amendment so far possession of small and less than commercial quantity of contraband is concerned. The amended provision of Section 37 reads: "37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 to 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless— (1) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]" (Emphasis supplied) 16. It may be seen that no person accused of an offence punishable for offences under Section-19 or Section 24 or Section 27-A and also for offences involving commercial quantity can be released on bail or on his own bond unless:— (a) the Public Prosecutor has been given a notice to oppose the application for such release; and (b) if the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. 17. In the present cases the quantity involved is less than the commercial quantity, therefore rigor of clause-b of sub-section (1) of Section 37 will not be applicable and the petitions are liable to be dealt with in accordance with the provisions of the Code of Criminal Procedure. 18. The question then arises whether the petitioners, who committed the offence before the coming into force of the amendment of the Act, are entitled to the benefit of the amended provision relating to bail or not. Section 41 of the amending Act (9 of 2001) reads: "1. Short title and commencement.—(1) This Act may be called The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001. (2) It shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint; and different dates may be appointed for different provisions of this Act, and any reference in any provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. :* * * * * * * * 41. :* * * * * * * * 41. Application of this Act to pending cases.—(1) Notwithstanding anything contained in sub-section (2) of Section 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence: Provided that nothing in this section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby declared that no Act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force." 19. It may be noticed that all cases which are either pending before the Court or under investigation are to be disposed of in accordance with the provisions of the amended Act. However, the provisions of the amended Act will not be applicable to the cases which are pending in appeal. 20. Mr. Guleria, learned Law Officer, submits that in both the cases, the trial is as yet to be commenced. In these circumstances, the petitions are liable to be dealt with in accordance with the provisions of the amended Act and shall be entitled to liberal provision of bail under Section 37 of the Amended Act. 21. Learned Law Officer opposes the bail application on the ground that both the petitioners are foreign National and possibility of their fleeing away from justice on release on bail cannot be ruled out and therefore, the petitioners should not be released on bail. So far the question of the petitioners fleeing away from the justice is concerned, appropriate directions can be issued to ensure their presence during the course of trial. 22. Taking into consideration the entirety of the circumstances, the quantity of contraband which allegedly was found in their possession, I allow the petitions and direct that the petitioner Takeo Takahashi in Cr.M.P. (M) No. 1476 of 2001 and petitioner Peter Bortolotti in Cr.M.P. (M) No. 1477 of 2001 be released on furnishing bonds in the amount of Rs. 22. Taking into consideration the entirety of the circumstances, the quantity of contraband which allegedly was found in their possession, I allow the petitions and direct that the petitioner Takeo Takahashi in Cr.M.P. (M) No. 1476 of 2001 and petitioner Peter Bortolotti in Cr.M.P. (M) No. 1477 of 2001 be released on furnishing bonds in the amount of Rs. five lacs each with two sureties each of the like amount, one of which should be local resident of Kullu, to the satisfaction of the learned Sessions Judge, Kullu. 23. The bail shall be subject to the conditions that the petitioners: (a) shall not influence the witnesses or otherwise interfere with the investigation; (b) shall not leave the District of Kullu without prior permission of the learned Sessions Judge, Kullu; (c) shall make themselves available as and when required to do so by either the police or the Court; and (d) shall report to Station House Officer, Kullu, daily till their trial is concluded or otherwise ordered by the competent Court. 24. The Station House Officer, Kullu, shall inform the respective Embassies of the petitioners in India and the immigration officer(s) of the International Air Port(s) about the fact that passport of the petitioners have been impounded in the cases in which they are involved. 25. The petitions are, accordingly, disposed of. 26. Dasti copy on usual terms. -