ORDER : This is an application for regular bail, filed under Section 439 of the Criminal Procedure Code, by the petitioner, who is the 1st accused in Crime No.42/2023 of Kanjirappally Police Station, Kottayam, where the prosecution alleges commission of offences punishable under Section 22(c) & 20(b)(II)(A) and 29 of the Narcotic Drugs and Psycotropics Substances Act (`NDPS Act' for short). 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the case diary and report of the Investigating Officer, placed by the learned Public Prosecutor. 3. The prosecution case, initially, at the time of preparing the search list was that the 1st accused possessed 300 ml of LSD stamp and 1 gram of Hashish at 8.10 p.m on 08.01.2023 and later when the contraband was weighed before the Magistrate, it was found that the LSD stamps recovered from the 1staccused (5 in numbers) would weigh 0.11 gram and the Hashis would come to 0.26 gram. Thereafter the 2nd accused was also arrested on the allegation that he had sold the contraband to the 1st accused herein. 4. It is submitted by the learned counsel for the petitioner that the contraband in this case when weighed in a carat weighing machine, it was found as 0.300 mg of LSD stamps and 0.1 gram of Hashish oil. Accordingly, it is submitted that when the same, if converted into grams, the same would come to a small quantity and therefore the petitioner deserves bail since Section 37 of the NDPS Act has no application in so far as intermediae quantity of contraband is concerned. He also pointed out that the petitioner, who has been in custody, for the last more than one year otherwise entitled for bail. 5. In so far as the weight conversion as argued by the learned counsel for the petitioner is not supported by any convincing data. 6. Strongly repelling these contentions, the learned Public Prosecutor categorically argued, relying on the recitals in the case diary, that when the 1st accused was arrested along with the contraband, the contraband was weighed in a balance made available, from a jewellery, and the weight of the LSD stamp was stated as 0.300 mg instead of 300 CT. 6. Strongly repelling these contentions, the learned Public Prosecutor categorically argued, relying on the recitals in the case diary, that when the 1st accused was arrested along with the contraband, the contraband was weighed in a balance made available, from a jewellery, and the weight of the LSD stamp was stated as 0.300 mg instead of 300 CT. But when the contraband was produced before the Magistrate, the same was weighed in the presence of Magistrate and it was found that the weight in gram in so far as LSD is concerned would come to 0.11 gram and the Hashis would come to 0.26 gram. Thus this fact was reported to the court and after investigation final report also was laid alleging that accused Nos.1 and 2 committed the above offences. It is also submitted that therefore the quantity of contraband involved in this crime is commercial in nature and a mistaken measurement shall not be adjudged in favour of the accused, that too, at the stage of considering bail. Therefore, there is no reason to relax the rider under Section 37 of the NDPS Act and the petitioner is not liable to be released on bail. It is also pointed out by the learned Public Prosecutor that in this case a very serious offence alleged to be committed where rider under Section 37 of the NDPS Act would apply and, therefore, the petitioner is not liable to be released on bial. He also placed a decision of the Apex Court reported in [2010 KHC 4631 : 2010(2) KLD 534 : 2010 (8) SCALE 594 : 2010 (4) KLT SN 11 : AIR 2010 SC 3594 : 2010 (9) SCC 85 : 2010 CriLJ 4715 : 2011 (99) AIC 161 : 2010 (3) SCC (Cri) 1139], Dehal Singh & anr. v. State of Himachal Pradesh to contend that discrepancy in weight of samples by itself does not cast any doubt on prosecution case. In the said decision the Apex Court held that it is common knowledge that weighing scale and weight kept in the grocery – shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, in the facts and circumstances of this case, is not of much significance. In the said decision the Apex Court held that it is common knowledge that weighing scale and weight kept in the grocery – shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, in the facts and circumstances of this case, is not of much significance. Sample was taken by a common weighing scale and weight found in a grocery shop, whereas the weight in the laboratory recorded with precision scale. This would be evident from the fact that the weight of the sample recorded in the laboratory was 65.5606 gms. In this background, small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story. 7. Further in paragraph 12, after referring to the decision in [2008 KHC 5054 : 2008 (16) SCC 417 : 2008 (9) SCALE 681 ], Noor Aga v. State of Punjab & anr. the Apex Court observed that the diference in the weight at the time of taking samples and at the laboratory was considered material as in the said case the sample was taken by the Custom Officials at the Airport and the Court came to the conclusion that weight was taken from a precision scale. Further it is not only the discrepancy in the weight which led this Court to reject the case of the prosecution but had taken into consideration several other discrepancies to come to the said conclusion. This shall be evident from paragraph 98 of the judgment, which reads as follows: `98. We are not oblivious of the fact that a slight difference in the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case as ordinarily an officer in a public place would not be carrying a good scale with him. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.” 8. Here, however, the scenario is different. The place of seizure was an airport. The officers carrying out the search and seizure were from the Customs Department. They must be having good scales with them as a marginal increase or decrease of quantity of imported articles whether contraband or otherwise may make a huge difference under the Customs Act.” 8. The learned counsel for the petitioner submitted that as the petitioner is a first time offender, he deserves bail because the trial could not be completed within a period of 6 months since the petitioner has been in custody for the last 13 months and he is a first time offender. The learned counsel for the petitioner relied on [ 2023 (3) KHC 212 : 2023 KHC OnLine 321], Fasil v. State of Kerala in support of this argument. 9. Paragraphs 129 and 130 of the decision reported in Noor Aga v. State of Punjab & anr. (supra) have been also relied on by the learned counsel for the petitioner to contend that though the weight of the sample may not be held to be so crucial as to disregard the entire prosecution case when the available materials cast doubt in so far as the quantity of the contraband, the same would give benefit in favour of the accused. 10. In Fasil v. State of Kerala (supra), this Court considered the rider under Section 37 and set out certain situations to dilute the rider under Section 37 of the NDPS Act relying on 3 decisions of the Apex Court (Two Bench decisions), where the Apex Court granted bail in cases involving commercial quantity of contraband. 11. On reading Section 37(1)(b) of the NDPS Act, the same provides that, notwithstanding anything contained in the Code of Criminal Procedure, 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-(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. 12. 12. Section 37(2) of the Act makes it clear that the limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations on granting of bail provided under the Code of Criminal Procedure, 1973. 13. In this connection, Section 436A of Cr.P.C also assumes significance and the same provides as under: “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties; Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.” 14. In [2022 SCC OnLine 929], Vijay Madanlal Choudhary v. Union of India, dealing with Section 45 of the Prevention of Money Laundering Act, a provision analogues to Section 37(1)(b) of the Act, which also starts with a non-obstante clause, the Supreme Court has held that: The provision in the form of Section 436A of the 1973 Code, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution. For, it is a sanguine hope of every accused, who is in custody in particular, that he/she should be tried expeditiously – so as to uphold the tenets of speedy justice. If the trial cannot proceed even after the accused has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him this lesser relief of considering his prayer for release on bail or bond, as the case may be, with appropriate conditions, including to secure his/her presence during the trial .... If the trial cannot proceed even after the accused has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him this lesser relief of considering his prayer for release on bail or bond, as the case may be, with appropriate conditions, including to secure his/her presence during the trial .... For, it is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending upto one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further... If the Parliament/Legislature provides for stringent provision of no bail, unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time, at least before the acused undergoes detention for a period extending upto one-half of the maximum period of imprisonment specified for the concerned offence by law. In our opinion, therefore, Section 436A needs to be construed as a statutory bail provision and akin to Section 167 of the 1973 Code ... We must hold that Section 436A of the 1973 Code could be invoked by accused arrested for offence punishable under the 2002 Act, being a statutory bail.” Therefore, when bail is sought under Section 436A of Cr.P.C, the “twin conditions” in Section 37(1)(b) of the Act need not be satisfied, if the accused has undergone detention for a period extending upto one half of maximum sentence specified for that offence. 15. 15. In [2023 KHC 7096 : 2023 LiveLaw (SC) 533 : 2023 SCC OnLine SC 1109 : 2023 KHC OnLine 7096], Rabi Prakash v. State of Odisha, a two-Judge Bench of the Supreme Court has held that, prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b) (ii) of the Act. In this case, the accused was in jail for more than three and a half years. 16. However, in [2022 KHC 6720 : 2022 KHC OnLine 6720 : AIR 2022 SC 3444 ], Narcotics Control Bureau v. Mohit Aggarwal, a three-Judge Bench of the Apex Court had held that the twin conditions under Section 37(1)(b) of the Act have to be satisfied for releasing the accused on bail. It was a case in which the accused had remained in custody for a period of one year and three months. The Supreme Court held that the length of the period of custody of the accused could not be treated as persuasive ground for granting the relief of bail to the accused. 17. In [MANU/SC/1643/2022], Union of India v. Khalil Uddin, where the High Court granted bail to the accused since the accused had undergone custody for a period about one year, the Apex Court held that, in the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. 18. Tracing the verdicts as regards to grant of bail in cases involving commercial quantity, where grant of bail is interdicted under Section 37 of the NDPS Act, the following decisions are relevant: Sr. No. Judgment Bench Date of judgment Holding 1. Badsha SK v. State of West Bengal, SLP (Crl.) 9715/2023 Two Bench of the Hon’ble SC 13/09/2023 Accused released on bail since (1) they had been in custody for over 2 years and 4 months (2) although charges framed in August 2023, none of the prosecution witnesses examined, hence trial yet to commence (3) nature of the contraband (100 bottles of cough syrup containing codeine phosphate) and (4) no known criminal antecedents against the accused 2. Rabi Prakash v, State of Odisha, 2023 SCC OnLine SC 1109 Two Bench of the Hon’ble SC 13/07/2023 Prolonged incarceration militates against fundamental right guaranteed under Article 21, and thus conditional liberty must override statutory embargo created under S. 37(1)(b)(ii) of NDPS Act. [Facts relied on: The Accused who had spent more than three years in custody and has no criminal antecedents. Trial has commenced but only 1 out of 19 witnesses examined] 3. Mohd. Muslim v. State (NCT Delhi), 2023 SCC OnLine SC 352 Two Bench of Hon’ble SC 28/02/2023 While granting bail, the court would look at the material in a broad manner and reasonably see whether the accused’s guilt may be proved. Grant of bail on the ground of undue delay cannot be said to be fettered by S. 37 of NDPS Act given the imperative of Section 436A of the Code which is applicable to offences under NDPS Act too. The accused who had spent 7 years and 4 months in custody was released on bail. 4. Dheeraj Kumar Shukla v. State of UP, 2023 SCC OnLine SC 918 Two Bench of Hon’ble SC 25/01/2023 Though commercial quantity of contraband was recovered, the Accused had no criminal antecedents and had spent two-and-a-half years in custody. While charges have been framed, trial is yet to commence. Hence, the rigors of S. 37 could be dispensed with. 5. Vijay Madanlal Chaudhary v. UoI, 2022 SCC OnLine 929q Three Bench of the Hon’ble SC 22/07/2022 S. 436A of CrPC is a wholesome beneficial provision which is effectuating the right of speedy trial guaranteed by Article 21, and which merely specifies the outer limits within which the trial is expected to be concluded, failing which the accused ought not to be detained further. The relief under 436A cannot be granted mechanically, and must be considered on a case-tocase basis (especially since the proviso recognises that detention can continue longer than half of the period prescribed for reasons which are to be recorded in writing and by imposing terms and conditions on release). Under the PMLA, there is no visible sign of these protections against police's power of search and arrest; it is in stark contrast with the constitutional protections given also the reverse presumption against innocence at stage of bail under Section 45 of the PMLA. 6. Under the PMLA, there is no visible sign of these protections against police's power of search and arrest; it is in stark contrast with the constitutional protections given also the reverse presumption against innocence at stage of bail under Section 45 of the PMLA. 6. NCB v. Mohit Aggarwal 2022 SCC OnLine SC 891 Three Bench of the Hon’ble SC 19/07/2022 Length of period of custody or the fact that charge-sheet has been filed and trial has commenced are not considerations that can be treated as persuasive grounds for grant of bail u/s. 37. Reasonable grounds mean credible and plausible grounds for believing that the accused is not guilty of the offences charged with. The court must also be satisfied that the accused is unlikely to commit the offence while on bail. 7. Union of India v. Rattan Mallik (2009) 2 SCC 624 Two Bench of Hon’ble SC 23/01/2009 While granting bail, the twin conditions of S. 37 have to be mandatorily satisfied. The term ‘reasonable grounds’ means more than prima facie grounds and connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The Court is not called upon to record a finding of ‘not guilty’ but see whether there are reasonable grounds for believing that the accused is not guilty. 8. Intelligence Officer, Narcotics Control Bureau v. Sambhu Sonkar (2001) 2 SCC 562 Two Bench of Hon’ble SC 02/02/2001 Section 37 of the NDPS Act cannot be given a liberal interpretation on the justification that it affects the personal liberty of a citizen who is yet to be tried. Bail granted by the Hon’ble HC was cancelled considering legislative intent of curbing the practice of giving bail on technical grounds, and object of making stringent provisions for control of illicit traffic in drugs. 9. Babua v. State of Orissa (2001) 2 SCC 566 Two Bench of the Hon’ble SC 30/01/2001 It is to be seen whether the accused would be found guilty if the allegations in the charge are established. The Hon’ble Court held that it could not be said that the accused is not guilty, but also it could not be said that accused is guilty since evidence has not been completely adduced. The Hon’ble Court held that it could not be said that the accused is not guilty, but also it could not be said that accused is guilty since evidence has not been completely adduced. The liberty of a citizen has to be balanced with the interest of the society, especially in cases where drugs are involved since the accused would indulge in activities that are lethal to society [In this case, the apparent deadlock about the accused’s guilt and innocence was broken by applying the principle of safeguarding the greater good of the society.] 10. Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India 1994 (6) SCC 731 Two Bench of Hon’ble SC (Ahmadi, Hansaria, JJ.) 07/10/1994 To refuse bail on one hand and to delay trial on the other is clearly unfair and unreasonable and contrary to Articles 14, 19 and 21 of the Constitution. The following directions were passed insofar as it related to the State of Maharashtra: 1. For persons accused of offences prescribing imprisonment of 5 years or less, if the accused has spent half the punishment provided in custody, he shall be released on bail. 2. For persons accused or offences prescribing imprisonment exceeding 5 years and fine, if the accused has spent half the punishment provided in custody, he shall be released on bail provided that the bail amount shall not be less than Rs. 50,000/- with two sureties for like amount 3. For persons accused of offences prescribing minimum imprisonment of 10 years and minimum fine of Rs, 1,00,000/-, if the accused has spent five years in custody, he shall be released on bail provided that the bail amount is Rs. 1,00,000/- with two sureties for like amount 4. For undertrial accused who is charged for commission of an offence under sections 31 and 31A, he shall not be released on bail General conditions for undertrial accused entitled to bail in accordance with this order: 1. He shall deposit passport, and if not holding a passport shall file an affidavit to that effect 2. He shall present himself at the police station that prosecuted him on a monthly/fortnightly/wee kly basis, unless leave of absence is obtained in advance 3. Bail and fine shall not be available to those who are likely to tamper with evidence or influence the prosecution witnesses 4. He shall present himself at the police station that prosecuted him on a monthly/fortnightly/wee kly basis, unless leave of absence is obtained in advance 3. Bail and fine shall not be available to those who are likely to tamper with evidence or influence the prosecution witnesses 4. Foreigners shall have their passports impounded and the Special Judge shall insist on certificate of assurance from the Embassy / High Commission of that country stating the accused shall not leave the country and shall appear before the Court whenever required 5. He shall not leave the area without permission of the Special Judge 6. The Special Judge is at liberty to cancel bail if any of the above conditions are violated Priority will be accorded to those undertrial prisoners who have not been released 11 Narcotics Control Bureau v. Kishal Lal, (1991) 1 SCC 705 Two Bench of the Hon’ble SC 29/01/1991 In case of inconsistency between S. 439 CrPC and S. 37 NDPS Act, the latter will prevail. The powers of High Courts to grant bail u/s. 439 CrPC are subject to limitations contained in the amended s. 37 of NDPS Act. 19. Thus divergent views could be noticeable while interpreting Section 37 of the NDPS Act. 20. When there are conflicting views on the same point, it is well settled that the decision of the larger Bench or the decision of a co-equal Bench renderd in earlier point of time to be followed as the binding precedent, decisions rendered taking a divergent view by the coordinate Bench (Bench of co-equal strength) or a lesser Bench could not be followed. If the above principle is applied, the law is to be followed is as held in Narcotics Control Bureau v. Mohit Aggarwal (supra). 21. On evaluation of the verdicts herein above referred, it is noticed that judgments were rendered with divergent views. However, it is well settled precedent in law that when there is a larger Bench decision declaring a law, i.e the binding decision. 22. 21. On evaluation of the verdicts herein above referred, it is noticed that judgments were rendered with divergent views. However, it is well settled precedent in law that when there is a larger Bench decision declaring a law, i.e the binding decision. 22. By applying the said principle, the decision reported in Fasil v. State of Kerala (supra), without considering the ratio of the 3 Bench decision in Narcotics Control Bureau v. Mohit Aggarwal's case (supra), wherein the Apex Court categorically held that the length of period of cusotdy or the fact that the charge sheet has been filed and trial has commenced are not considerations that can be treated as pursuasive grounds for granting relief to the accused by relaxing the rider under Section 37 of the NDPS Act. Therefore, without satisfying the twin conditions under Section 37(2) of the NDPS Act, an accused, who alleged to have committed offence involving commercial quantity, is not liable to be released on bail. Therefore, it is held that the ratio in Fasil v. State of Kerala (supra) and other decisions on the same principles is not a good law to be followed. Therefore, the petitioner herein, who was involved in an offence involving commercial quantity of contraband, cannot be released on bail diluting the rider under Section 37 of the NDPS Act. Although it is argued by the learned counsel for the petitioner with a view to read the quantity of contraband as less than commercial quantity, such argument could not be justified as per the prosecution records. The prosecution records would justify seizure of commercial quantity of contraband from the 1st accused. 23. Before conclusion it is held that following the decision in Vijay Madanlal Choudhary v. Union of India's case (supra), when an accused who alleged to have committed offences where the rider under Section 37 of the NDPS Act would apply, if he has undergone detention for a period extending upto one half of the maximum period of sentence specified for the offence under the law, he shall be released by the Court on his personal bond with or without sureties. 24. In the result, this Bail Application shall stand dismissed. 24. In the result, this Bail Application shall stand dismissed. The Registry shall forward copy of this order to all the Sessions Courts and Special Courts, with direction that the directions in Fasil v. State of Kerala's case (supra) and the other decisions on the said ratio shall not be followed and the ratio in Narcotics Control Bureau v. Mohit Aggarwal's case (supra) shall be followed, to consider the rigour under Section 37 of the NDPS Act.