1. This application for bail was argued at length. The allegation against the petitioner is that he was carrying three bags one on each shoulder and one held in his right hand and each of these bags is alleged to have contained Indian Hemp (ganja). The alleged contents of the bags were of 7.5 kg., 7.5 kg and 7 kg of ganja totaling 22 kg which is above the commercial quantity of 20 kg prescribed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).As such, on the basis of the allegations made in the FIR, the case would fall under Section 37 of the NDPS Act.

2. The learned counsel for the petitioner pointed out that the factum of recovery of the alleged quantity of ganja is itself in doubt. He firstly submitted that there were no public witnesses although the recovery is said to have been made on a public road in the afternoon. Secondly, he submits, with a great deal of vehemence, that the samples said to have been collected and marked as S-12, S-25 and S-34 as indicated in the FIR were of 600 gms each specifically. However, the Forensic Science Laboratory report clearly indicated that the samples S-12, S-25 and S-34 contained Indian Hemp (ganja) in the quantities of 630 gms, 560 gms and 750 gms respectively. The contention of the learned counsel for the petitioner is that not only does the total quantity differ, the difference in each of the samples is also substantial. Furthermore, he submits that this could not be regarded as a discrepancy attributable to differences in weighing scales inasmuch as if that had been the case, then the discrepancies in the weights would have been uniform in the sense that the weights would have been more or less in all the samples and not greater in some and less in others. The learned counsel for the petitioner further submitted that the seals were intact as indicated in the FSL report itself, a copy of which is placed at page 24 which reads Seals Intact as per F.As Letter The learned counsel for the petitioner also made a submission that the entire quantity that is alleged to have been recovered cannot construed as Ganja inasmuch as the definition of Ganja in Section 2 (iii) (b) specifically excludes the seeds and leaves when not accompanied by the tops. However, this last point was not stressed much at this stage for grant of bail.

3. The learned counsel for the petitioner placed reliance on a decision of the Supreme Court in the case of Rajesh Jagdamba Avasthi v State of Goa reported in 2005(1) Apex Criminal Judgment 240. The learned counsel for the petitioner submitted that in that case, because of, inter alia, discrepancies in the amounts seized and those sent to the Junior Scientific Officer, the court found that there were enough doubts and it would be unsafe to sustain a conviction on that basis. Accordingly, the discrepancy resulted in the acquittal of the accused in that case. Taking strength from that decision, the learned counsel for the petitioner submitted that in the present case, there was a clear discrepancy and this discrepancy created enough doubts and would certainly fall within the parameters of Section 37 which requires the existence of reasonable grounds of the offence not having been made out before an order of releasing the person on bail can be passed by the court.

4.Mr Dudeja, the learned counsel for the State vehemently opposed the grant of bail on the ground that the alleged recovery is of a commercial quantity specified under the NDPS Act. He submitted that the rigours of Section 37 would apply and, therefore, the petitioner was not entitled to bail at this stage. As regards the discrepancy in the weights of the samples sent by the police station and received by the FSL, he submitted that the same could be explained with respect to differences in weighing scales. He submitted that, that would be a matter for consideration at the stage of trial of the case where the prosecution could explain the discrepancy by leading evidence. He further submitted that, in any event, this court while considering the question of grant or non-grant of bail, is not to go into this evidence in detail as indicated by the Supreme Court in the case of Superintendent Narcotics Central Bureau, Chennai v R. Paulsamy 2001 CrLJ 117. Mr Dudeja also placed reliance on the case of Un on of India v Ram Samujh and Anr 1999 (6) JT 397 and he urged that no case for grant of bail has been made out.

5. Section 37 of the NDPS Act reads as under:

"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 27- A 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.

(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."

As indicated in Section 37 itself and as observed by the Supreme court in Ram Samujh (supra), any person accused of an offence under the NDPS Act, to which Section 37 applies, should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (1) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (2) where the Public Prosecutor opposes the application:(a) The court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence; and (b) that he is not likely to commit any offence while on bail.

6.In this case, the Public Prosecutor has been given an opportunity and he has opposed the grant of bail. Therefore, before the petitioner is entitled to be released on bail, this court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit the same while on bail. These are the parameters which have been specified in the Section 37 itself and have been explained in the case of Ram Samujh (supra) by the Supreme Court.

7.With this position of law, the case cited by the petitioner [Rajesh Jagdamba Avasthi (supra)] and the case cited by the counsel for the State [R. Paulsamy (supra)] are to be considered. In the case of Rajesh Jagdamba Avasthi (supra), the facts were that a recovery of charas from the shoes of the accused was alleged to have been made. 100 gms from the shoe for right foot and 115 gms from the left foot. These two quantities were placed in two envelopes A and B and were sent to the Junior Scientific Officer who was examined in that case as PW1. The envelopes were sealed and sent to the said Junior Scientific Officer who indicated that the seals were intact. However, on opening by the Junior Scientific Officer, the two envelopes, A and B were found to contain 98.16 and 82.54 gms of charas as distinct from the 100 gms and 115 (respectively) said to have been recovered from the accused. Insofar as the discrepancy between 100 gms and 98.16 is concerned, the Supreme Court found that the discrepancy was minor but, with regard to the discrepancy of the contents of envelope B, which was from 115 gms to 82.54 gms, the Supreme Court found that such a discrepancy was a major one and it cast serious doubts on the prosecutions case.

8. The High Court in that case had upheld the conviction of the appellant despite these discrepancies. However, the Supreme Court, upon a consideration of the entire case, observed as under:

" We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gms. The charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by Junior Scientific Officer, PW-1, he found the quantity to be different. While in one envelope the difference was only minimal, in the other the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from the envelope ignoring the quantity of Charas found in envelope. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded is it is found that the quantity actually found by PW-1 was less than the quantity sealed and sent to him. As he rightly emphasized, the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really rent for chemical analysis to PW-1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful."

9. From the above paragraph, what can be found is that the discrepancies did not so much relate to the quantum of seizure but to the seizure itself. It is not just that, as in the present case, instead of 1800 gms, 1940 gms were sent to the Forensic Science Laboratory. What is important is that such a discrepancy casts reasonable doubts on the credibility of the recovery itself and it is on that basis, amongst other grounds, that the Supreme Court in the case of Rajesh Jagdamba Avasthi (supra) found it unsafe to sustain the conviction of the appellant therein.

10. Coming now to the case on which the learned counsel for the State has strongly relied upon, which is the case of Paulsamy (supra). The facts in this case were that there was an alleged recovery of 2 kg of Heroin from the room which was in the occupation and possession of the accused. As would be revealed from a reading of paragraph 3 thereof, the learned Single Judge had granted bail essentially on two grounds that (1) there was prima facie violation of Section 52 and, there was prima facie non-compliance of the provision of Section 57 of the.

11. The learned counsel for the State strongly relied upon the contents of paragraph 6 of this judgment and, therefore, the same needs to be reproduced and are so reproduced:-

"6.In the light of Sec. 37 of the no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Secs 52 and 57 have been pre-judge by the learned single Judge at the stage of consideration for bail. The minimum which learned single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections."

12.Essentially, the learned counsel for the State strongly relied upon the phrase Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned single Judge during bail stage regarding the compliance of the formalities mentioned in those two sections. Taking a clue from this sentence in the said judgment of the Supreme Court, the learned counsel for the State submitted that the discrepancies that have emerged in the weights of the samples sent and received will be explained at the stage of evidence and should not be gone into at the stage of grant of bail.

13.Looking at the aforesaid two decisions of the Supreme Court it becomes clear that in the case of Jagdamba Avasthi (supra), the Supreme Court found it sufficient to acquit the accused therein on the ground of discrepancies in the quantities. Secondly, in the case relied upon by the counsel for the State the observation is that the presumption can be rebutted during evidence. In the present case, there is no presumption. The facts are that samples of 600 gms each were sent admittedly and admittedly the Forensic Science Laboratory has indicated that those very samples being S-12, S-25 and S-34 contained 630 gms, 560 gms and 750 gms respectively. There is, therefore, no question of a rebuttable presumption arising as in the case of Paulsamy (supra). Furthermore, it is to be noted that it is the requirement of Section 37 that the court considering an application for bail has to go into the question as to whether there exist or do not exist reasonable grounds of believing that the accused is not guilt of such offence. Therefore, it becomes imperative, on the basis of the provisions of Section 37 as well as what has been indicated in Ram Samujh (supra), that even at the stage of grant of bail, the court has to go into the question of whether any grounds exist to indicate whether the accused is guilty of the offence or not on the basis of the available material before the court. Having considered the facts and circumstances of this case, I am satisfied that there are reasonable grounds for believing that the present petitioner is not guilty of the offence for which he has been charged. With regard to the second aspect that the petitioner is not likely to commit any offence while on bail, the learned counsel for the petitioner has stated that there are no criminal antecedents insofar as the present petitioner is concerned and this has not been controverted by the prosecution.

14.In this view of the matter I find that the necessary requirements of Section 37 have been fulfilled and therefore this is a fit casein which the petitioner is to be released on bail. Accordingly, I direct that the petitioner be released on bail on furnishing a personal bond in the sum of Rs.20, 000/- with one surety of the like amount to the satisfaction of the concerned court.

15. It is however, made clear that all observations made in this order are only for the purpose of grant of bail. They are not to be considered at the time of the trial of the case. This application stands disposed of. Dasti.