JUDGMENT Anoop Chitkara, J. FIR No. Dated Police Station Sections 40 06.03.2024 STF Wing, District STF SAS Nagar 21/29/61/85 of NDPS Act The petitioner, apprehending arrest in the FIR captioned above for selling 255 grams of Heroin to Jaspreet Singh from whose possession the police has recovered the same, came up before this Court under Section 438 of the CrPC, 1973, seeking anticipatory bail. 2. In paragraph 19 of the bail application, the accused declares the following criminal antecedents: Sr. No. FIR No. Date Offences Police Station 1. 65 17.06.2020 22/29 of NDPS Act Sadar Faridkot 3. The petitioner contends that pre-trial incarceration would cause an irreversible injustice to the petitioner and his family. 4. While opposing the bail, the contention on behalf of the State is that they want custodial interrogation because the quantity of contraband involved in the case falls in the commercial category, and they have collected sufficient evidence that prima facie points towards the petitioner's dealings with the drugs trade and the international mafia. Facts: 5. Facts of the case are being taken from short reply dated 08.04.2024 filed by concerned DySP which reads as under:- "2. That in compliance to the order dated 04.04.2024, it is most respectfully submitted that FIR No. 0040 dated 06.03.2024 under Section 21/61/85 of NDPS Act was registered at Police Station Special Task against Jaspreet Singh Singh alias Preet son of Jaswant Singh, resident of Village Baghe Ke Uttar, Jalalabad, District Fazilka. On 06.03.2024, Police party during patrolling when reached Clock Tower Chowk, Jalalabad, one secret informer gave secret information that Jaspreet Singh alias Preet son of Jaswant Singh, r/o Bagge Ke Uttar, Jalalabad, who is running hotel under the name and style of Jass Villa at Muktsar Road Byepass, Mannewala, also indulged in selling heroin to its customers and now at present he is standing in front of his hotel on Pulser Motor cycle color Black and waiting for the customers to whom he sells heroin. The information is reliable and trustworthy and as such Ruga was prepared and the present case was registered. Thereafter, as per the secret information, ASI Balkar Singh along with his companions proceeded on Government vehicle PB-11-CB-5832 on the disclosed place and on seeing the police party, Jaspreet Singh alias Preet tried to flee away from the spot along with motor cycle, but he was apprehended by the police. Thereafter, as per the secret information, ASI Balkar Singh along with his companions proceeded on Government vehicle PB-11-CB-5832 on the disclosed place and on seeing the police party, Jaspreet Singh alias Preet tried to flee away from the spot along with motor cycle, but he was apprehended by the police. Thereafter ASI Balkar Singh 1991/FZR disclosed his identity to him and told him that he had suspicion that you were in possession of some narcotic substance and as such your personal search was reguired. ASI Balkar Singh also offered him that his search could be conducted in the presence of Gazetted officer or Magistrate and at this Jaspreet Singh alias Preet showed his willingness to get himself searched in the presence of Gazetted officer and at this the non consent memo was prepared and Jaspreet Singh alias Preet signed the same. Thereafter, ASI Balkar Singh called Shri. Rakesh Kumar, PPS, DSP, STF Ferozepur Range at the spot and in his presence, the search was made and from the pocket of pent of Jaspreet Singh alias Preet, 255 gram heroin was recovered, which was taken into possession by the police vide separate memo. The motor cycle was also taken into possession vide separate memo. The site plan was also prepared at the spot. One mobile phone make 12 Pro Max containing sim no.78890-80678 Jio company was also taken into possession by the police vide separate memo. 3. That during police remand, Jaspreet Singh alias Preet admitted that the heroin which was recovered from him, he purchased the same from Sanket alias Sunny (Petitioner) son of Subash Uppal, who is running karyana shop at Bhattian Wali Basti, Ferozepur City few days ago. Jaspreet Singh alias Preet further Admitted that he purchased the heroin from Sanket alais Sunny (petitioner) by contacting through his phone No. 78890-80678 to the mobile numbers of Sanket alias Sunny i.e. 99145-20900, 90417-61295 through whatsapp. Jaspreet further admitted that on an earlier four occasion also, he purchased the heroin from the present petitioner. Thus vide rapat no.012 dated 08.03.2024, petitioner was nominated in the FIR and offence under section 29 NDPS Act was enhanced." Reasoning: 6. I have heard Id. Counsel for the parties and gone through the record. The following paragraphs will reflect the arguments and counterarguments addressed by the parties and its outcome. 7. Thus vide rapat no.012 dated 08.03.2024, petitioner was nominated in the FIR and offence under section 29 NDPS Act was enhanced." Reasoning: 6. I have heard Id. Counsel for the parties and gone through the record. The following paragraphs will reflect the arguments and counterarguments addressed by the parties and its outcome. 7. Counsel for the petitioner submits that the petitioner has been arraigned as an accused on the disclosure statement which has no evidentary value. In addition to disclosure statement, there is no other evidence connecting the petitioner. Although the petitioner has one criminal case under NDPS Act but that was also a false case and the said case was also based on disclosure statement. Counsel for the petitioner refers to para no.8 of the petition which reads as follows:- "8. That even it is very important to mention here that phone numbers mentioned in DDR are not corroborated by any kind of chat or conversation. Moreover, it is pertinent to mention here that even phone numbers mentioned in DDR stating to be of Petitioner bearing No.9914520900 and 9041761295 do not use or belong to Petitioner. Infact, mobile phone No.9914520900 relates/belongs to co-accused Jaspreet's friend's father Varinder. Infact, Jaspreet's friend Kashish and Jaspreet are living in the same area of Jalalabad and said mobile No.9914520900 belongs to Varinder, who is father of Kashish, on the contrary, Petitioner is resident of Ferozepur, doing Karyana work, whereas co-accused Jaspreet Singh and his friend Kashish, whose father's mobile number mentioned in the DDR are very close friends and living in the same area of Jalalabad." 8. To the contrary, State counsel opposes the bail and submits that the petitioner has not been nominated because of the disclosure statement but because of the call details which clearly indicate that the petitioner had sold 255 grams of Heroin which falls under commercial quantity to Jaspreet Singh from whose possession the police has recovered the same. Even if confessional statement of Jaspreet Singh is ignored, still petitioner did not offer any explanation about the deposit of money in his ICICI bank account and call details. State counsel has referred to para no.4 of the reply which reads as under:- "4. That Jaspreet Singh alias Preet is a very clever person and he intentionally and deliberately has given incorrect mobile numbers of petitioner. State counsel has referred to para no.4 of the reply which reads as under:- "4. That Jaspreet Singh alias Preet is a very clever person and he intentionally and deliberately has given incorrect mobile numbers of petitioner. This fact came to the notice of the Investigating agency, when they obtained the call details of the mobile number of Jaspreet Singh alias Preet having No. 78890-80678 and as per the said details, both Jaspreet Singh alias Preet and Sanket alais Sunny (petitioner) found conversation with each other on 10.02.2024, 11.02.2024, 12.02.2024 and 05.03.2024, from his mobile No. 78890-80678 to mobile No. 98881-77750. The mobile No. 98881-77750 belongs to the present petitioner. The recovery was effected in this case on 06.03.2024 whereas both i.e. petitioner and Jaspreet Singh talked with each other on 05.03.2024 as per the call details obtained from the concerned corner. The true copy of the call details is annexed as Annexure R-1." 9. An analysis of the above submissions would lead to the following outcome. There is evidence of money transaction and call details. Since the quantity involved is commercial, as such it is the petitioner who has to satisfy this Court about the mandatory conditions of Section 37 of NDPS Act placed by the legislature whose legality has been upheld by the Hon'ble Supreme Court. The explanation offered by the petitioner in para no.8 (supra) is contradicted by call details and deposit of money. Apparently, the same does not satisfy the conditions under Section 37 of NDPS Act. There is no material before this Court to believe that petitioner was not guilty of the offence. There is sufficient evidence of recovery of 255 grams of Heroin from Jaspreet Singh and there is also prima facie evidence connecting the petitioner with Jaspreet Singh which corroborates the prosecution allegations that petitioner was the supplier of the said drug and they want to know the source from whom the petitioner had purchased the said heroin and for the said purpose, they need custodial interrogation. In the entirety of facts and circumstances of the case, no case is made out for grant of anticipatory bail. Petitioner has also similar criminal history pending against him which points out towards his conduct. 10. In the entirety of facts and circumstances of the case, no case is made out for grant of anticipatory bail. Petitioner has also similar criminal history pending against him which points out towards his conduct. 10. State Counsel also refer to judgment of Hon'ble Supreme Court passed in case State of Haryana v. Samarth Kumar, 2022(3) R.C.R.(Criminal) 991, wherein Hon'ble Supreme Court holds, [8], In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. [9], To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents. 11. The quantity of heroin that was seized falls in the commercial category. Section 37 (1) of the NDPS Act mandates under sub-section (1) (b) of section 37, that no person accused of an offence punishable for offences involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and is not likely to commit any offence while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors. [(1) 37. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors. [(1) 37. Offences 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 section 19 or section 24 or section 27A 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 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.] 12. The State's arguments are that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions. 13. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions. 13. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these conditions is not met, the ban on granting bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts, and the parameters for anticipatory bail are stringent compared to the regular bail when the accused is in judicial custody. 14. The quantity involved is commercial, and the burden to satisfy the rigor of condition of Section 37 of NDPS Act, was on the petitioner, which he did not discharge to the satisfaction of the statutory requirements. The investigation reveals that there is sufficient prima facie evidence to connect the petitioner with the crime, and thus, the petitioner fails to make out a case for anticipatory bail. The investigation reveals that there is sufficient prima facie evidence to connect the petitioner with the crime, and thus, the petitioner fails to make out a case for anticipatory bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused. 15. The grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. 16. In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379 , Hon'ble Supreme Court holds, [19]. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434 , State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305 ], 17. In the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner fails to make a case for anticipatory bail under section 438 CrPC. 18. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. Petition dismissed. All pending applications, if any, stand disposed.