Judgment ( 1 ) THESE three bail applications are under S. 439, Cr. P. C. for grant of bail during the pendency of the trial in respect of offence u/ss. 8/20, 8/20 and 8/18 respectively of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act" hereinafter) respectively. ( 2 ) IN Bail Application No. 1182/05 Shaffi mohammed v. State, a FIR No. 715/04 was registered u/s. 8/20 of the Act at Police station Kotwali, Baran as 4 kg. 400 gms. Ganja was recovered from the possession of the accused-petitioner on 21-11-2004. In Bail application No. 1195/05 Mohan Singh v. State, FIR No. 402/04 was registered at Police Station, Sevar (Bharatpur) u/s. 8/20 of the Act as 300 grams Charas was recovered from the possession of the accused-petitioner on 21-11-2004. Similarly, 1 kg. Opium with bag was recovered from accused-Sita Ram on 20-12-2004, therefore, fir No. 185/04 was registered against him for the offence u/s. 8/18 of the Act at Police Station Harnavda Shahji, Distt. Baran. ( 3 ) THE learned counsel for the petitioners submit that Ganja, Charas and Opium recovered in these cases are less than the "commercial quantity" as defined u/s. 2 (viia)of the Act, which means any quantity greater than the quantity specified by the Central government by Notification in the Official gazette. The Central Government has issued notification specifying commercial quantity. The Ganja, Charas and Opium has been mentioned at S. Nos. 55, 23 and 92 of the table of the Notification, which specifies the commercial quantity as 20 kgs. , 1 kg. and 2. 5 kgs. respectively. The quantity recovered in the present case is much less than the commercial quantity. ( 4 ) THE learned Public Prosecutor opposes the bail applications. His objection is that in view of limitation contained in Cl. (b) of sub-section (1) of S. 37 of the Act, this Court should not grant bail to the accused-petitioners unless, it is satisfied that there are reasonable grounds for believing that accused persons are not guilty of such offence and that they are not likely to commit any offence while on bail. ( 5 ) I have heard learned counsel for the petitioners as well as the learned Public prosecutor. The N. D. P. S. Act, 1985 was amended by Central Act 9 of 2001 (w. e. f. 2-10-2001 ). ( 5 ) I have heard learned counsel for the petitioners as well as the learned Public prosecutor. The N. D. P. S. Act, 1985 was amended by Central Act 9 of 2001 (w. e. f. 2-10-2001 ). It would be appropriate to take note of few relevant provisions after amendment :-"section 2 (viia)- "commercial quantity," in relation to narcotic drug and psychotropic substances, means any quantity greater than the quantity specified by the Central government by notification in the Official gazette; section 2 (xxiiia)- "small quantity," in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Section 18- Punishment for contravention in relation to opium poppy and opium.-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,- (a) where the contravention 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) where the contravention 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 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; (c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees. Section 20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions 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 (i) where such contravention relates to cl. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions 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 (i) where such contravention relates to cl. (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 but 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. Section 36-A (1 ). Offences triable by special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall only by the special Court constituted for the area in which the offence has been committed or where there are more special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; (b) (c) (d) xxx. . . . . . . . xxxxxx. . . . . . . . . . . (2) xxxxx. . . . . . . . . xxxxxx. . . . . . . . . . . . . . . . . xxxxxx. . . . . . . . . . . (2) xxxxx. . . . . . . . . xxxxxx. . . . . . . . . . (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under S. 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under cl. (b) of sub-section (1) of that section as if the reference to "magistrate" in that section included also a reference to a "special Court" constituted under S. 36. (4 ). . . . . . . . . . xxxxx. . . . . . . . . xxxxxxx (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this act with imprisonment for a term of not more than three years may be tried summarily. Section 37- Offence to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ).- (a) every offence punishable under this act shall be cognizable; (b) no person accused of an offence punishable for offences under S. 19 or S. 24 or s. 276 and also for offences involving commercial quantity shall be released on bail or on his own bond. (i) 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 cl. (b) of sub-section (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. " ( 6 ) IN C. B. I, v. Dhan Singh, reported in 2004 Cri LR (SC) 135, the Honble Supreme court held as under :-"section 37 of the Act is mandatory. Before grant of bail the ingredients mentioned therein are required to be examined and bail granted only when the applicant fulfils the conditions stipulated in S. 37. " ( 6 ) IN C. B. I, v. Dhan Singh, reported in 2004 Cri LR (SC) 135, the Honble Supreme court held as under :-"section 37 of the Act is mandatory. Before grant of bail the ingredients mentioned therein are required to be examined and bail granted only when the applicant fulfils the conditions stipulated in S. 37. Section 37 was not at all adverted to by the High Court. We may note that the bail granted to the respondent by the Special Judge on 23-4-2001 was cancelled on 29-6-2001 by the special Judge. Another bail application was rejected on 28-8-2001. On 8-10-2001, the high Court rejected the petition seeking bail. In the said order reference was made to the stringent provisions of S. 37 of the Act. Despite this background and without adverting to S. 37 the High Court decided to grant bail and we say no more, except that the some irrelevant matters have been noticed in the order, namely, the respondent having telephone and ration card etc. " ( 7 ) IN Narcotics Control Bureau v. Dilip prahlad Namade, reported in (2004) 3 SCC 619 : (2004 Cri LJ 1815, para 9), the Honble supreme Court, held as under :-"10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent-accused is concerned, are : (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence, and (2) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This allure of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessities of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when at large. In the case at hand the High court seems to have completely overlooked the underlying object of S. 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under S. 67 of the Act. " ( 8 ) IN Narain Lal v. State of Rajasthan, reported in 2004 (3) Raj Cri C 1396, this honble Court rejected the bail application u/s. 439, Cr. P. C. in respect of offences u/ ss. 8/18, 8/29 of the Act in view of specific bar u/s. 37 (1) (b) of the Act. ( 9 ) IN C. B. I, v. Dhan Singh (2004 Cri LR (SC) 135) (supra), the offence took place prior to the date of amendment in N. D. P. S. Act and the said fact is clear from para 4 of the said judgment as date of order of the Special judge has been mentioned as dated 27th september, 2001, whereas Act was amended w. e. f. 2-10-2001. The said case was decided on the basis of facts and circumstances of that particular case and amended provisions were not under consideration before their lordships of the Honble Supreme Court. ( 10 ) SIMILARLY, in Narcotics Control Bureau v. Dilip prahlad Namade (2004 Cri LJ 1815) (supra), the Honble Supreme Court was dealing with the case relating to the period prior to the date of amendment (i. e. 2-10-2001 ). The Honble Supreme Court has quoted unamended S. 37 in para 8 of the judgment. It clearly shows that present S. 37 (after amended on 2-10-2001) was not under consideration before their Lordships of the Supreme Court. The Honble Supreme Court has quoted unamended S. 37 in para 8 of the judgment. It clearly shows that present S. 37 (after amended on 2-10-2001) was not under consideration before their Lordships of the Supreme Court. ( 11 ) IN Narain Lal v. State of Rajasthan (supra), this Court has relied upon the case of Narcotics Control Bureau v. Dilip Prahlad namade (supra), which relates to the period prior to amendment made in S. 37 of the Act. ( 12 ) THE Orissa High Court in Rupadhar v. State of Orissa, reported in 2002 (2)Crimes 223 , has considered the effect of amendment made in S. 37 of the Act and has held as under :-"4. From the aforesaid facts, it appears that the legislature intended that wherever punishment prescribed is for maximum period of ten years, S. 37 (b) as amended will not operate as bar. I therefore, hold that for the offence alleged to be committed under s. 20 (a) of the Act, S. 37 (b) shall not operate as a bar and the Court can grant bail depending on facts of each case without adhering to the provision contained in S. 37 (b) (ii) of the Act. " ( 13 ) IN Manoj Kumar v. State of Himachal pradesh, reported in 2003 Cri LJ 1644, the effect of amendment made in S. 37 of the act w. e. f. 2nd October, 2001 has been considered. ( 14 ) THE legislature has prescribed punishment for the offences u/ss. 19, 24 and 27-A with rigorous imprisonment for a term, which shall be not less than 10 years but, it may extend to 20 years and shall also be liable to fine, which shall be not less than rs. 1 lakh but, it may extend to Rs. 2 lakhs and further for reasons to be recorded in the judgment, a fine exceeding Rs. 2 lacs can be imposed. The same punishment has been provided for offences involving commercial quantity u/s. 20 (b) (ii) (c) of the Act. 1 lakh but, it may extend to Rs. 2 lakhs and further for reasons to be recorded in the judgment, a fine exceeding Rs. 2 lacs can be imposed. The same punishment has been provided for offences involving commercial quantity u/s. 20 (b) (ii) (c) of the Act. So far as other offences in this Act where contravention involves small quantity is concerned, the same are punishable with rigorous imprisonment of a term which may extend to six months or with fine which may extend to ten thousand rupees, or with both and where contravention involves quantity lesser than commercial 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. Therefore, legislature has drawn a distinction in between the various offences for contraventions of various sections of the ndps Act, 1985. The offences u/ss. 19, 24 and 27-A and involving commercial quantity has to be dealt with separately for the purpose of bail in comparison to other offences under the provisions of the Act of 1985, as minimum sentence of ten years rigorous imprisonment is provided for these offences. ( 15 ) A bare perusal of S. 37 of the Act as reproduced above will make it clear that sub-clause (ii) of cl. (b) of sub-section (1) of S. 37 of the Act will be applicable only in respect of offence u/s. 19 or S. 24 or S. 27-A and also for offences involving commercial quantity. These words "offences under S. 19 or s. 24 or S. 27-A and also for offences involving commercial quantity" have been substituted w. e. f. 2nd October, 2001. Therefore, the limitation on granting of bail specified in cl. (b) of sub-section (1) of S. 37 of the Act is only in respect of aforesaid offences u/ss. 19, 24 and 27-A and offences involving commercial quantity. Although, in the aforesaid offences also the Court is empowered to grant bail but before granting bail, the court is required to give an opportunity to the Public Prosecutor to oppose bail and has to satisfy itself 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 as required u/s. 37 (1) (b) of the Act. So far as other offences, except Ss. So far as other offences, except Ss. 19, 24 and 27-A and offences involving commercial quantity under the Act of 1985 are concerned, it is not necessary to take into consideration the limitation imposed under cl. (b) of sub-section (1) of s. 37 to the effect that Court must be 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 but, those cases are required to be considered on the basis of facts and circumstances of those cases. The limitation of S. 37 relating to bail has been relaxed by amendment so far as cases of small and less than commercial quantity of contraband is concerned. ( 16 ) UNDER the aforesaid circumstances, i am of the view that after amendment made in S. 37 of the Act w. e. f. 2nd October, 2001, the limitation or restriction imposed by subsection (1) (b) (ii) of S. 37 applies only in respect of offence u/ss. 19, 24 and 27-A and for offences involving commercial quantity and so far as other offences under the Act are concerned, the said restriction/limitation is not applicable, ( 17 ) SO far as present three cases are concerned, in Shaffi Mohammed v. State of rajasthan (S. B. Cri. Misc. Bail Application no. 1182/05), the quantity of "gaanja" recovered is 4 kgs. and 450 grams, whereas as per Notification specifying "small quantity" and "commercial quantity" issued u/s. 2 of the Act of 1985, the small quantity is 1 kg. and commercial quantity is 20 kgs. In mohan Singh v. State of Rajasthan (S. B. Cri. Misc. Bail Appl. No. 1195/05), the "charas" recovered in the case is 300 gms. whereas, as per notification, the small quantity is 100 gms. and commercial quantity is 1 kg. In sita Ram v. State of Rajasthan (S. B. Cri. Misc. Bail Appl. No. 1245/05), 1 kg. opium has been recovered, whereas as per notification, small quantity is 25 gms. and commercial quantity is 2. 5 kgs. ( 18 ) THEREFORE, in all the cases the contravention involves for greater than small quantity but, certainly lesser than commercial quantity as notified u/s. 2 of the Act, therefore, limitation on granting bail as mentioned under cl. (b) of sub-section (1) of S. 37 is not applicable in the present cases. and commercial quantity is 2. 5 kgs. ( 18 ) THEREFORE, in all the cases the contravention involves for greater than small quantity but, certainly lesser than commercial quantity as notified u/s. 2 of the Act, therefore, limitation on granting bail as mentioned under cl. (b) of sub-section (1) of S. 37 is not applicable in the present cases. The further point for determination is whether in such circumstances where contravention involves is greater than small quantity and lesser than commercial quantity, then any further consideration or safeguard should be taken into consideration as these offences are relating to society and public at large. In my opinion, at least two conditions should be kept in mind at the time of considering the bail applications u/s. 439, Cr. P. C. where the contravention of provisions of Act involves for lesser than commercial quantity and greater than small quantity. In such matters normally, the accused person (s)should not be released on bail till investigation in the case is pending i. e. till filing of charge-sheet against him in Court and further that no other case of identical nature is pending against him. However, it is made clear that in any particular case where contravention of provisions of Act involves lesser than commercial quantity and challan has been filed and no case of identical nature or serious nature is pending accused, the Court is always free to see the nature of accusation, the manner in which offence has taken place and also the gravity of offence and in such matters, the Court may refuse to release the accused persons on bail. ( 19 ) THE police diary was called in all the cases. Learned Public Prosecutor after perusal of the case diary is not in a position to dispute that in all the three cases, investigation is complete and challan has already been filed. The learned Public Prosecutor also submits that no case of identical nature or of serious nature is pending against the petitioners in addition to present case. ( 20 ) AFTER considering all the facts and circumstances of these cases and without expressing any opinion on merits of the case, i consider it just and proper to release the accused-petitioner (s) namely, Shaffi mohammed alias Shaffi Baba on bail in FIR no. 715/2004 Police Station, Kotwali, Baran registered u/ss. 8/20 of the NDPS Act in s. B. Cri. Misc. 715/2004 Police Station, Kotwali, Baran registered u/ss. 8/20 of the NDPS Act in s. B. Cri. Misc. Bail Application No. 1182/05, accused-petitioner-Mohan Singh in FIR no. 402/2004, Police Station Sevar, District bharatpur, registered u/ss. 8/20 of the ndps Act in S. B. Cri. Misc. Bail Appln. No. 1195/05 and accused-petitioner-Sita Ram in FIR No. 185/2004, Police Station, harnavda Shahji, District Baran, registered u/ss. 8/18 of the NDPS Act in S. B. Cri. Misc. Bail Appl. No. 1245/05 provided, each of them furnish a personal bond in the sum of rs. 25,000/- together with one surety of the like amount to the satisfaction of the learned trial Court for their appearance before that court on all subsequent dates of hearing and as and when called upon to do so. ( 21 ) THIS order will be subject to a further condition that in case accused-petitioners commit any offence under this Act during pendency of the present case, then, it will be open for the prosecution to move an application for cancellation of this bail order. Order accordingly.