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Jammu and Kashmir High Court: An application was filed by the petitioner before a Single Judge Bench comprising of M.K. Hanjura, J., against the order where petitioner’s application for bail was rejected.

Facts of the case were such that petitioner was caught carrying banned contraband  Maxcoff-T Syrup and FIR was lodged against him under Sections 8 and 22 NDPS Act pursuant to which he was under arrest. Petitioner had filed an application for bail before Court of the learned Additional Sessions Judge where the same was rejected and thus this application was filed before the High Court. The ground on which petitioner was seeking bail was that the substance found with him was an intermediate quantity of the contraband which does not come under the scales of commercial quantity. Whereas respondent resisted application on the ground of commission of a heinous crime against the society by petitioner.

The Court observed that the quantity required to constitute commercial quantity was 1 kg while the seized quantity was less than 1 kg thus not falling under Section 37 of NDPS Act. Further quantity of 10 gms is actually an intermediate quantity and the seized contraband was found to be falling under this quantity having punishment of 10 years imprisonment with Rs 10 Lakhs fine. Application of petitioner should have been considered under Section 497 of Criminal Procedure Code as the same did not fall under Section 37.  Trying to find the legislative intent behind Section 37 it was observed that the fact that such category of small, intermediate and commercial quantity was made shows that the category of small and intermediate is not at par with the commercial category.

High Court using its discretion well based on the foundation of laws found no reasonable ground for declining bail as the punishment for the alleged offence is not life imprisonment or death penalty. Therefore, bail was granted to the petitioner. With the observations made in this application, Court came to the question of whether the amendment incorporated in Section 167 J&K Criminal Procedure Code was rightly reflected and published in Volume 4 of Gupta’s J&K Laws 2015 edition. It states that the proviso added to Sub-Section 2 of Section 167 has been substituted by the Jammu and Kashmir Criminal Laws (Amendment) Act, 2014 (XI of 2014). It was found that no such Amendment Act as Criminal Laws Amendment Act of 2014 (Act XI of 2014) existed but only of 2013 then too applicable only to few offences but was wrongly applied to all the offences. Therefore, the editors of the publication were questioned, whether they could have published government notifications as the same hampered few bail application where the wrong amendment was applied.  [Firdous Ahmad Payer v. State of J&K,2018 SCC OnLine J&K 742, order dated 17-10-2018]

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