Mohan Lal, J.

1. Applicant has sought regular bail in FIR No. 120/2020 of Police Station Rajbagh Kathua for commission of offences contrary to sections 8/15/29 of Narcotics Drugs Psychotropic Substance Act 1985 (for short the NDPS Act). It is averred, that applicant is a citizen of India and permanent resident of U.T. of J&K and is entitled to protection of all legal statutory and constitutional rights guaranteed to him by the constitution of India; that he has been implicated in false and frivolous case which has culminated in the production of challan which is pending disposal before the court of Ld. Sessions Judge Kathua titled State of J&K v/s Mohd Ashraf and Anr; that the applicant preferred bail application before the trial court but the same was rejected by the trial court's order dated 15-11-2021 on the grounds that quantity of alleged poppy straw recovered falls under commercial quantity; that the challan makes it amply clear, that only 2.66 kg of alleged poppy straw was recovered from the possession of applicant after his arrest on 26-08-2020 which is smaller quantity; that the trial court of Ld. Addl. Sessions Judge Kathua was not right in holding that alleged contraband falls in the category of commercial quantity; that the applicant is in custody for more that 1 year in District Jail Kathua despite the fact that intermediate quantity of contraband poppy straw has been recovered from his possession; that the applicant undertakes to abide by all the terms and conditions imposed by the court if enlarged on bail.

2. Respondent No. 1/U.T. of J&K through SHO Police Station Rajbagh Kathua by filing objections/status report has opposed the bail on the grounds, that on 28-06-2020 a special Naka duty was laid at NHW near Police Station Rajbagh, at about 1630 hours one vehicle Tata Mobile Pickup 207 bearing registration No. JK02AJ/9451 coming from Jammu towards Lakhanpur was stopped for checking purpose, during checking of the said vehicle 8 white colored plastic bags (toda) hidden under it weighing 75/80 kg (10 kg each) poppy straw were recovered from driver who disclose his name as Mohd Ashraf S/O Mohd Yousaf R/O Village Jagti Kamini Tehsil Nagrota District Jammu (respondent No. 2/accused), on the tip of information during the course of investigation, on 06-08-2020 applicant/accused was arrested for illegal trade of selling poppy straw and after his arrest on 01-09-2020 he confessed to have hid poppy straw in an abandoned toilet on the backside of his dhaba and on his disclosure, 2.660 kg of poppy straw was recovered from him; in view of the evidence collected, the challan of the case has been produced in the court of law against applicant/accused and the respondent No. 2.

3. Ld. Counsel for petitioner has strenuously argued, that on the naka laid by police party at Rajbagh Kathua on 28-06-2020, 75/80 kgs of poppy straw of commercial quantity was recovered from the possession of respondent No. 2/principal accused, while after a gap of about 2 months on 06-08-2020 from the possession of petitioner/accused 2.660 grams of poppy straw of intermediate quantity was recovered, therefore, two accused persons have been found in possession of the contraband poppy straw individually. It is argued, that in view of the settled legal position that when two (2) accused persons were found together individually carrying contraband and there was no evidence of conspiracy, quantity of contraband carried by both could not be added to bring it within the meaning of commercial quantity. To support his arguments, Ld. Counsel has relied upon, (i) judgment of Hon'ble Supreme Court reported in AIR 2005 (SC) 4248 [LQ/SC/2005/936] (Amarsingh Ramjibhai Barot--Appellant Versus State of Gujarat-- Respondent) & (ii) Judgment of Coordinate Bench of J&K High Court titled Hardeep Singh--Petitioner/Appellant(s) V/s Union Territory of J&K--Respondent(s).

4. Ld. GA has vehemently argued, that the quantity of contraband recovered from the possession of petitioner and respondent No. 2 is commercial quantity, offence indicted against accused is heinous in nature and against society, granting of bail to petitioner/accused would send wrong message to the society as it will encourage other criminal minded persons to indulge in similar crime, petitioner if granted bail can jump over the conditions of bail and influence the prosecution witnesses. Prayer has been made for dismissal of the bail application.

5. As emerges out from the record, the allegations against petitioner/accused are, that on 28-06-2020 a special Naka duty was laid at NHW near Police Station Rajbagh, at about 1630 hours one vehicle Tata Mobile Pickup 207 bearing registration No. JK02AJ/9451 coming from Jammu towards Lakhanpur was stopped for checking purpose, during checking of the said vehicle 8 white colored plastic bags (toda) hidden under it weighing 75/80 kg (10 kg each) poppy straw were recovered from driver who disclose his name as Mohd Ashraf S/O Mohd Yousaf R/O Village Jagti Kamini Tehsil Nagrota District Jammu (respondent No. 2/accused), on the tip of information during the course of investigation, on 06-08-2020 applicant/accused was arrested for illegal trade of selling poppy straw and after his arrest on 01-09-2020 he confessed to have hid poppy straw in an abandoned toilet on the backside of his dhaba and on his disclosure, 2.660 kg of poppy straw was recovered from him. In Amarsingh Ramjibhai Barot v. State of Gujarat (2005) 7 SCC 550] [LQ/SC/2005/936] two persons namely Amarsingh and Danabhai were found together and narcotic substances weighing 4.25 kg and 900 grams were recovered from their possession and the Hon'ble Apex Court held, that although they were found together, but the quantity of contraband carried by both the accused separately could not be added to bring it within the meaning of commercial quantity. In Hardeep Singh V/S U.T of J&K a Co-ordinate Bench of J&K High Court rendered a decision on 13-08-2021, whereby, it has been held, that although 143 & 257 grams of heroin was found in possession of two accused separately, the quantity recovered from them cannot be added to bring it within a meaning of commercial quantity and the accused found in possession of 143 grams of heroin of intermediate quantity was granted bail by the Co-ordinate Bench observing that rigor contained in Section 37 of NDPS Act was not applicable. In a case law titled Vishal Joshi -(Appellant) Vs. State of J&K -(Respondent), a bail application decided on 28.09.2018, wherein Hon'ble Mr. Justice M.K. Hanjura (His Lordships the then was) while granting bail to an accused indicted for possessing 9 Kg of Poppy Straw (Intermediate quantity) in FIR No. 50/2018 u/ss. 8/15 of NDPS Act while discussing the scope of section 37 NDPS Act vis-à-vis personal liberty of the accused, in Paras 8, 9, 11 & 12 held as under:-

"8. What gets revealed from the order of the trial court is that the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial quantity but it is an intermediary one and, therefore, the application of the applicants had to be considered under the provisions of 497 Cr.P.C.. It is only on the application of the rigor of or of NDPS Act to a given case that bail can be withheld. In any case which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 Cr.P.C. Therefore, a realistic view and a pragmatic approach has to be taken in such a case.

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. 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.

11. Testing at the instant application from the above perspective, it requires to be recapitulated that the rigor of Section 37 of the NDPS Act does not apply to the instant case. It also needs to be said that the case of the applicant does not fall within the parameters of the offences that are punishable with death or imprisonment of life. Therefore, there appears to be no reasonable ground for declining bail to the applicant. The maxim of the law of bails which has its application to the case on hand where the quantity of narcotics recovered from the applicant falls within the scales of an intermediary quantity, for which the punishment provided is upto 10 years and a fine of rupees one lac is "bail and not jail".

12. Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty has its application to the facts of the instant case in all the fours. The object of the bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicant has been languishing in the jail for the last more than three months by now. The accused has to prepare for his defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot gets swayed by sentiments. Temper and passion have no role to play in exercising the discretion for the grant of bail. An individual cannot be denied the concession of bail on the pretext that he is the resident of a particular area. Grant of bail is the general rule and the accused cannot be discriminated against on the basis of the place of residence wherever he resides as long as he is a citizen of India. Mere apprehension that the accused will evade trial is not sufficient to deny bail".

Ratios of the judgments of Amarsingh Ramjibhai Barot's case, Hardeep Singh's case & 'Vishal Joshi's case' (Supra) squarely apply to the facts of the case in hand. In the case in hand, petitioner/accused has been found in possession of 2.660 grams of poppy straw (Bhukki) which is intermediate quantity, therefore, rigor of Section 37 of NDPS Act is not attracted and the bail application has to be considered in terms of provisions of Section 497 of Cr.P.C.. Deprivation of personal liberty is tantamount of punishment, the principle is that punishment begins after conviction and every accused is innocent unless duly tried and found guilty. The object of bail is to secure attendance of the accused at the time of trial. Bail cannot be withheld as matter of punishment. Grant of bail is general rule and it's refusal is an exception. Mere apprehension that accused will evade trial and remain absent is not sufficient to deny the bail. Hence, petitioner/accused has carved out a strong case for bail in his favour. Bail application is allowed. Accordingly, petitioner/accused is admitted to bail subject to his furnishing surety bond in the sum of Rs. 50000/- before Registrar Judicial of this court and personal recognizance of like amount before the Incharge District Jail Kathua. Before parting the following conditions are imposed upon the accused:-

(i) that the petitioner/accused shall appear before the trial court on each and every date of hearing except circumstances beyond his control for which purpose his counsel would seek exemption from the trial court;

(ii) that the petitioner/accused shall not cause any inducement/threat to any prosecution witness or dissuade him from deposing before the court;

(iii) that in the event of violation of any of the conditions mentioned above, respondent/U.T. can lay a motion for cancellation of bail before the trial court.

6. Disposed off accordingly.