ORDER : Sanjay Dhar, J.-The petitioner has filed the instant application under Section 439 of the Code of Criminal Procedure for grant of bail in case FIR No.132/2021 for offences under Section 8/20 of NDPS Act registered with Police Station, Kangan. 2. As per the prosecution case, on 08.11.2021, Police Station, Kangan, received information from reliable sources that a person, namely, Mushtaq Ahmad Bajard, is illegally selling charas and bangpatri to the younger generation of the area and has hidden the said contraband substance on the roof top of his house. Upon receipt of this information, police party and Executive Magistrate, 1st Class, Kangan, reached the spot where they seized 140 grams of charas like substance and 06 kgs of bangpatri. Accordingly, case FIR No.132/2021 for offences under Section 8/20 NDPS Act was registered and investigation was set into motion. During the course of investigation, site plan was prepared, statements of witnesses were recorded and samples of contraband seized and sealed in presence of the Executive Magistrate on spot were sent to FSL, Srinagar, for expert opinion. 3. After investigation of the case, offences under Section 8/20 of the NDPS Act were found established against petitioner/accused and charge sheet was laid before the trial court on 02.02.2022. 4. It appears that the petitioner had filed an application for grant of bail in his favour in the aforesaid FIR before the Court of Principal Sessions Judge, Ganderbal, and the same was rejected by the Court vide order dated 27.12.2021. Being aggrieved of the said order, the petitioner has filed the instant petitions before this Court for grant of bail in his favour on the grounds that quantity of contraband that is alleged to have been recovered from the possession of the petitioner falls in intermediate quantity; that the learned trial court while rejecting the bail petition of the petitioners has not properly appreciated the legal position attending the issue of grant of bail, inasmuch as the rule is bail not jail which in other words means that grant of bail is a rule and its refusal an exception and that in case bail is granted in favour of the petitioner, he is ready to abide by all terms and conditions that may be imposed by the Court. 5. The respondent-State has resisted the bail petition by filing objections thereto. 5. The respondent-State has resisted the bail petition by filing objections thereto. In its objections, respondent-State has contended that the instant bail petition is liable to be dismissed as the petitioner is involved in a heinous offence which is against the society at large as the menace of drug addiction has engulfed the society and is creating havoc to the families which needs to be dealt with strong fist; that there are reasonable grounds for believing that the petitioner would jump over the concession of bail if granted and that this Court while considering the bail application on the touchstone of individual liberty must not lose sight of interest of the society. 6. I have heard learned counsel for the parties and perused the record. 7. In the instant case, learned Principal Sessions Judge, Ganderbal, has rejected the bail petition of the petitioner. The question that arises for consideration is whether or not successive bail applications will lie before this Court. The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. In this behalf, it will be profitable to quote the following observations of the Supreme Court in the case titled Gurcharan Singh & Ors vs State (Delhi Administration), AIR 1978 SC 179 : “It is significant to note that under Section 397, Cr. P. C of the new Code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to revision when the authorities have concurrent powers. Similar was the position under Section 435(4), Cr. P. C of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although, under Section 435(1) Cr. P. C of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court’s jurisdiction in revision was left untouched. P. C of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although, under Section 435(1) Cr. P. C of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court’s jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under Section 439(2), Cr. P. C to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under Section 439(2), Cr. P. C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary. 8. Relying upon the aforesaid observations of the Supreme Court, the High Court of Bombay in the case titled Devi Das Raghu Nath Naik v. State, (Crimes Volume 3 1987 363), has observed as under: “The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr.P.C. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr.P.C. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh’s case (above).” 9. From the aforesaid discussion of law on the subject, it is manifest that the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offence. Even otherwise when the application of the petitioners was rejected by the learned trial court, the charge sheet against the petitioner/accused was yet to be filed. The same as per the objections filed by the respondent, has now been filed before the learned trial court on 02.02.2022. Thus, there is a definite change of circumstance since the rejection of earlier bail application of the petitioner. 10. Coming to the order of the learned Principal Sessions Judge, Ganderbal, whereby application of the petitioner for grant of bail has been rejected, the learned Judge while rejecting bail application of the petitioner has observed that the quantity of contraband recovered from the petitioners fall in intermediate quantity, therefore, bar of Section 37 of NDPS Act is obviously not applicable to the case. It seems that severity of punishment and seriousness of offences alleged to have been committed by the petitioner has weighed with the learned Sessions Judge while rejecting bail application of the petitioner. According to the learned Judge, the menace of trade in use of narcotic drugs and psychotropic substances is required to be curbed with a heavy hand and for this reason bail application of the petitioner has been rejected. 11. In the instant case, as per the prosecution story, 140 grams of charas and 06 kgs of Bangpatri has been recovered from the possession of the petitioner. Admittedly, the quantity of charas recovered from the possession of the petitioner falls in between small and commercial quantity i.e., intermediate quantity. The other substance recovered from the possession of the petitioner is Bangpatri i.e., leaves of cannabis plant. Admittedly, the quantity of charas recovered from the possession of the petitioner falls in between small and commercial quantity i.e., intermediate quantity. The other substance recovered from the possession of the petitioner is Bangpatri i.e., leaves of cannabis plant. Section 2(iii) of the NDPS Act defines ‘cannabis (hemp)’ as under: (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom; 12. From a bare reading of the aforesaid provision, it is clear that leaves of a cannabis plant without flowering or fruiting tops do not come within the definition of ‘cannabis (hemp)’. It is only the possession of ‘cannabis (hemp)’ which is punishable under Section 20 of the NDPS Act. Thus, the possession of Bangpatri or leaves of cannabis plant is not an offence under the provisions of the NDPS Act, though cultivation of cannabis plant is an offence punishable under Section 20 of the Act. 13. In the instant case, the prosecution does not allege that the petitioner is involved in cultivation of cannabis plant. However, Section 3(9) of the Jammu and Kashmir Excise Act defines intoxicating drug and as per this definition it includes bhang as well. Possession of the intoxicating drug has been made an offence punishable under Section 48 of the said Act and it carries a punishment upto three years of imprisonment with fine which may extend to Rs.10,000/-. 14. From the above narration of the facts and the law applicable to these facts, it comes to the fore that the petitioner was found to be in possession of intermediate quantity of charas which is punishable under Section 20 of the NDPS Act and he was also found to be in possession of Bhang leaves which is not an offence under the provisions of the NDPS Act but is an offence under Section 48 of the Jammu and Kashmir Excise Act. The rigor of Section 37 of the NDPS Act is not applicable to the instant case keeping in view the quantity of Charas recovered from the petitioner. So far as offence under Section 48 of the Jammu and Kashmir Excise Act is concerned, there is no legal or statutory bar to grant of bail in the said offence. 15. It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case. A Coordinate Bench of this Court, while discussing the principles to be followed in a case where intermediary quantity of contraband was recovered from the accused, has, in the case of Mehraj-ud-Din Nadroo and others Vs. State of J&K (BA No.74/2018 decided on 07.07.2018), observed as under: “9. The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences. Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses, if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 10. The word “judicial discretion” has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.” Even so, it is useful to notice the tart terms of Lord Camden that “the discretion of a Judge is the law of tyrants. Wide enough in all conscience is the field of discretion that remains.” Even so, it is useful to notice the tart terms of Lord Camden that “the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable. 16. In the light of the afore-quoted principles, let us now advert to the facts of the instant case. As already noted, the quantity of contraband allegedly recovered from the accused does not fall within the parameters of ‘commercial quantity’ and the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. In respect of offence under Section 48 of the Excise Act also there is no statutory bar to the grant of bail. The observation of learned trial court while rejecting the bail application of the petitioner that the offences alleged to have been committed by the petitioners are serious in nature and the same affect the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon them. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner is in custody for more than four months now and his further incarceration will be nothing but imposition of punishment without trial of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail. 17. Apart from this, the respondent has not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. The investigation of the case is complete and the charge sheet stands filed before the court below. 17. Apart from this, the respondent has not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. The investigation of the case is complete and the charge sheet stands filed before the court below. If the petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved. 18. For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions: (i) That he shall furnish personal bond in the amount of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned trial court; (ii) That he shall appear before the trial court on each and every date of hearing; (iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court; (iv) That he shall not intimidate or tamper with prosecution witnesses/evidence.