Rakesh Kainthla, Judge

1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 366 of 2024, dated 9.12.2024, for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as ‘the ND&PS Act’). As per the prosecution, the police had recovered 44.125 grams of heroin from the possession of the petitioner. The police arrested the petitioner and seized the heroin. The police searched the petitioner’s house on 11.9.2024 and recovered 60.420 grams of heroin. The police filed the charge sheet against the petitioner on 1.2.2025. No fruitful purpose would be served by detaining the petitioner in custody. As per the prosecution, the petitioner was to deliver the contraband to some person. However, another person was not arrested, which falsifies the prosecution’s case. The petitioner is a young boy and the sole breadwinner of the family. Hence the petition.

2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 9.12.2024. They received a secret information at about 3:50 PM that the petitioner, Satnam, was selling heroin outside the exit gate of New Bus Stand Nalagarh. The police reduced the information to writing and sent it to the supervisory officer. The police apprehended the petitioner in the presence of independent witnesses. The petitioner had a backpack containing currency notes of ₹10,400/- and a polythene packet containing 44.150 grams of heroin. The police arrested the petitioner and seized the articles. The police subsequently searched the house of the petitioner and recovered 60.420 grams of heroin. The police sent the sample to FSL, where it was found to be Diacetylomorphine. The police arrested Sukhpreet Singh at the instance of the petitioner and found that they were in touch with each other. Hence, the status report.

3. I have heard Mr. Prikshit Rathour, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.

4. Mr. Prikshit Rathour, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The quantity of heroin stated to have been recovered from the possession of the petitioner is less than the commercial quantity and the rigours of Section 37 of the ND&PS Act do not apply to the present case. The police had not complied with the provisions of Sections 52-A and 42 of the ND&PS Act. The charge sheet has been filed before the Court and no fruitful purpose would be served by detaining the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

5. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the petitioner was found in possession of about 100 grams of heroin, which is a huge quantity. The petitioner is a drug peddler and should not be released on bail. The violation of Sections 52-A and 42 is not sufficient to grant bail to the petitioner. Hence, he prayed that the present petition be dismissed.

6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as follows: -

“12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

“14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied)

13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: —

“15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and eflective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied)

14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the application for bail and observed:

“4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied)

8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

9. It was submitted that there is a violation of Section 52-A of ND&PS, and the petitioner is entitled to bail. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Narcotics Control Bureau v. Kashif, 2024 SCC OnLine SC 3848, that the violation of Section 52-A does not entitle a person to be released on bail. It was observed:-

“39. The upshot of the above discussion may be summa- rized as under:

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(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic Drugs and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or there- after, would by itself not make the entire evidence collected during the course of investigation, inad- missible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other pri- mary evidence collected during the course of the investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” (Emphasis supplied)

10. This judgment was followed in Bharat Aambale v. State of Chhattisgarh, 2025 SCC OnLine SC 110 and it was held that non-compliance of Section 52-A of the ND&PS Act does not vitiate the trial. It was observed: -

“50. We summarize our final conclusion as under:—

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(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules there- under will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence ad- duced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.

(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confi- dence and satisfies the court as regards the recov- ery as-well as conscious possession of the contra- band from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any proce- dural defect in terms of Section 52A of the NDPS Act.

(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.

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11. Therefore, the submission that the petitioner is entitled to bail because of the violation of Section 52-A of the ND&PS Act cannot be accepted.

12. It was further submitted that there is a violation of Section 42-A of the ND&PS Act and the petitioner is entitled to bail on this ground. This submission is also not acceptable. It was laid down by Kerala High Court in Jomon v. State of Kerala, 2025 SCC OnLine Ker 1756 that bail cannot be granted because of violation of Section 42 of ND&PS Act. It was observed:-

“13. Moreover, in the Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, [2021 KHC 6503], the Apex Court observed like this:

“29. In the complaint that was filed on 16 October 2019, it is alleged that at about 1400 hours on 26 March 2019, information was received that between 1500-1700 hours on the same day, the three ac- cused persons would be reaching Uttar Pradesh. The complaint states that the information was im- mediately reduced to writing. Therefore, the con- tention that S. 42 of the NDPS Act was not complied with is prima facie misplaced. The question is one that should be raised in the course of the trial.” [Emphasis supplied]

14. Therefore, the question of violation of Section 42 of the NDPS Act need not be considered by this Court in a bail application.”

13. Thus, the petitioner is not entitled to bail because of any violation of Sections 42 and 52-A of the ND&PS Act.

14. It was submitted that the quantity of the heroin found in the petitioner’s possession is less than the commercial quantity, and the petitioner is entitled to bail as a matter of right. This submission is not acceptable. The status report shows that the petitioner was found in possession of a backpack containing 44.150 grams of heroin. The police searched the house of the petitioner and recovered 60.420 grams of heroin. Thus, the petitioner was found in possession of 104.57 grams of heroin, which is a substantial quantity and could not have been meant for self-consumption.

15. It was laid down by this Court in Dilbar Khan v. State of H.P., 2022 SCC OnLine HP 2441, that a person found in possession of an intermediate quantity of drugs is not entitled to bail as a matter or right. It was observed: -

“9. No doubt the quantity of contraband in the case is intermediate and therefore the rigours of Section 37 of the NDPS Act will not be applicable. Merely because the quantity of contraband recovered is less than the commercial quantity may not by itself be sufficient to grant bail.

10. The menace of drug abuse is not unknown in the society in modern times. The victims are innocent adolescents besides others. Drug abuse more often than not leads to drug addiction, which ruins the lives of a substantial number of such persons. The question arises as to how young adolescents, who by and large remain in the custody of their guardians, are able to procure the prohibited drug. Definitely, the drug is made available through a supply chain managed in an organized manner.”

16. It was laid down by this Court in Khushi Ram Gupta v. State of H.P., 2022 SCC OnLine HP 3779 that the menace of drug addiction has seriously eroded into the fabric of society and the release of an accused on bail in NDPS Act cases will send a negative signal to society. It was observed:

“8. The menace of drug addiction, especially in adolescents and students has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril.

9. It is not a case where the investigating agency is clueless in respect of evidence against the petitioner. Though allegations against the petitioner are yet to be proved in accordance with law, it cannot be singly taken as a factor to grant bail to the petitioner. Nothing has been placed on record on behalf of the petitioner to divulge as to how and in what manner he came in contact with the persons who were residents of State of Himachal Pradesh. Thus there is sufficient prima facie material to infer the implication of the petitioner in the crime. In such circumstances, the release of the petitioner on bail will send a negative signal in society, which definitely shall be detrimental to its interest.

10. The prima facie involvement of the petitioner in the dangerous trade of contraband cannot be ignored merely on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.”

17. Similarly, it was held in Bunty Yadav v. State of H.P., 2022 SCC OnLine HP 4996 that even where the rigours of Section 37 of the NDPS Act are not applicable, the bail cannot be claimed as a matter of right. Each case has to be adjudged on its own facts. It was observed:

“6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Such quantity may not technically fall under the category of commercial quantity, nevertheless, such quantity cannot be termed to be less by any stretch of the imagination. The evident nature of commercial transactions and dealing with the contraband aggravates the situation for the petitioner. In case, where Section 37 of the NDPS Act is not applicable, the bail cannot be claimed as a matter of right. The fate depends on the facts of each and every case.

7. The menace of drug addiction, especially in the adolescents and students has seriously eroded into the fabric of the society, putting the future generation as well as the prospects of future nation building into serious peril.”

18. Karnataka High Court took a similar view in Sri. Thaha Ummer vs Union of India Criminal Petition No.9450/2022 decided on 09-11-2022 and held that merely because Section 37 of the NDPS Act does not apply, a person involved in the commission of an offence punishable under the NDPS Act cannot be released on bail as a matter of right.

19. In the present case, 104.57 grams of heroin is a huge quantity and keeping in view the adverse impact of heroin upon the young generation, the same cannot be viewed lightly.

20. Consequently, the petitioner is not entitled to bail, hence, the present petition fails and the same is dismissed.

21. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.