[Cites 14, Cited by 0]
Punjab-Haryana High Court
Saleem Ali Alias Bittu vs State Of Punjab on 30 January, 2026
CRR No. 2346 of 2025 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
__
CRR No. 2346 of 2025 (O&M)
Date of decision : 30.01.2026
Saleem Ali @ Bittu ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Satnam Singh Gill, Advocate and
Ms. Manjot Kaur, Advocate
for the petitioner.
Ms. Sakshi Bakshi, AAG, Punjab.
MANISHA BATRA, J. (Oral)
1. The instant revision petition has been filed by the petitioner
seeking quashing of order dated 12.09.2025, passed by the Court of learned
Judge, Special Court, SAS Nagar in case arising out of FIR No. 117 dated
06.05.2025, registered under Sections 18 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'Act') at Police Station Dera
Bassi, District SAS Nagar, whereby an application filed by the petitioner
under Section 187(3) of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short
'BNSS') [which is pari materia with Section 167(2) of Cr.P.C.], seeking grant
of default bail, had been dismissed.
2. Brief facts of the case relevant for the disposal of this petition are
that on 06.05.2025, on the basis of a secret information, the petitioner and co-
accused Hareep Singh @ Deepa, while travelling in a car, were apprehended
by a police party headed by ASI Gurwinder Singh and recovery of 2.5 kgs. of
1 of 7
CRR No. 2346 of 2025 (O&M) -2-
opium was effected from the said car. Both of them were formally arrested at
the spot. During the pendency of investigation, the petitioner moved an
application under Section 187(3) of BNSS on 11.09.2025 seeking grant of
default bail before the Court concerned on the ground that a period of 90 days
had expired from the date of his arrest i.e. 06.05.2025 and challan was not
filed by that date. Hence, he was entitled to be released on default bail.
However, the said application had been dismissed by the learned trial Court
by making following observations :
"4. As the version of the prosecution goes, on 06.05.2025,
2.5 Kgs of contraband, stated to be Opium, had been
recovered from the possession of the accused. Until and
unless, the report of the FSL is received, any attempt made
to identify the nature of the substance would be principally
conjectural in nature since no such chemical test was
conducted so as to even prima facie determine the nature
of the salt/substance.
5. On the same analogy, until and unless the report of the
chemical examiner is received, the Court would never be
in a position to ascertain as to what is the nature of the
recovered substance and that if the recovered substance is
a proscribed substance under NDPS Act, whether the same
is commercial in nature or non-commercial. Therefore, at
this prefatory stage, it cannot be contended by the
accused/applicant to his benefit that the time period
governing investigation in the present case would be 90
days under Section 187 (3) of BNSS. Noteworthy is the
fact that in case of commercial quantity, under section
36A(4) of NDPS Act, the period '90 days' is to be
construed as '180'days. Evidently that period has not
expired so far and therefore the accused/applicant cannot
2 of 7
CRR No. 2346 of 2025 (O&M) -3-
secure bail under Section 187 (3) of BNSS since the
probability of the recovered substance falling in
commercial quantity under the NDPS Act would always
exist and the picture would be clarified in definitive terms
only on the receipt of the report of the chemical examiner.
As such the bail application is found to be unmaintainable
and is dismissed accordingly."
3. Learned counsel for the petitioner has argued that the impugned
order is not sustainable in the eyes of law as while passing the same, the
learned trial Court did not take into consideration the fact that as per Section
2(vii-a) of the Act, the quantity of the recovered contraband would fall under
non-commercial quantity and, therefore, the limitation for filing challan would
be a period of 90 days from the date of apprehension of the petitioner.
However, the prosecution had failed to submit the challan within the
stipulated time. Hence, the petitioner was entitled to be granted concession of
default bail on the strength of non-filing of challan within 90 days. He is in
custody since 06.05.2025. He has clean antecedents. Since the quantity of the
recovered contraband does not fall under commercial quantity, the bar under
Section 37 of the Act is not attracted at all. It is, therefore, argued that the
impugned order is liable to be set aside and the petition deserves to be
allowed, thereby granting benefit of default bail to the petitioner.
4. Reply has been filed by the respondent-State. In terms of the
same, learned State counsel has argued that there is no illegality or infirmity in
the impugned order. Commercial quantity of the contraband had been
recovered from the petitioner and co-accused. Hence, the limitation to present
3 of 7
CRR No. 2346 of 2025 (O&M) -4-
challan was 180 days and not 90 days. Hence, it is urged that there is no merit
in the petition and the same is liable to be dismissed.
5. This Court has heard the rival submissions.
6. Before proceeding further, it would appropriate to have a look on
Section 2(vii-a) of the Act, which defines commercial quantity. The same
reads as under : -
"Section 2 (vii-a): "commercial quantity", in relation
to narcotic drugs and psychotropic substances,
means any quantity greater than the quantity
specified by the Central Government by notification
in the Official Gazette."
7. The Government had issued a notification bearing No. S.O. 1055
(E), dated 19.10.2001, which was published in the Gazette of India, specifying
the small quantity and commercial quantity of different types of narcotic and
psychotropic substances in a tabulated form. The 'Opium' finds mention at
Sr. No. 92 of this table and the quantity specified therein to determine the
commercial quantity in relation to opium is mentioned as 2.5 kgs. Hence, on a
conjoint reading of Section 2(vii-a) of the Act as well as the contents of this
notification with regard to opium, it can conclusively be stated that any
quantity in relation to opium, which is greater than 2.5 kgs., shall fall under
commercial quantity.
8. Although Section 2(vii-a) of the Act itself unambiguously
provides that "commercial quantity" shall mean a quantity greater than that
specified in the notification, however, judicial precedents may still be referred
to reinforce its correct understanding, ensure uniform application and dispel
any misinterpretation that may arise in its implementation. Reliance can be
4 of 7
CRR No. 2346 of 2025 (O&M) -5-
placed upon the Full Bench judgment of the Himachal Pradesh High Court in
rendered in Ratto v. State of H.P., decided on 13.06.2003, wherein it was held
that that the expression "commercial quantity" occurring in Section 2(vii-a) of
the Act must be construed strictly in accordance with its plain grammatical
meaning. It was further held that since the statute uses the expression
"quantity greater than the quantity specified by the Central Government", the
notified quantity itself cannot be treated as commercial quantity. Hence, the
possession of exactly one kilogram of Charas was not considered to be
commercial quantity, as the "commercial quantity" would only mean a
quantity more than one kilogram and not the quantity specified in the
notification itself. Reliance can also be placed upon Firm L. Hazari Mal
Kuthiala v. Income-tax Officer, AIR 1957 Punjab 5 and Nelson Motis v.
Union of India, (1992) 4 SCC 711, wherein Hon'ble Supreme Court had held
that penal statutes, particularly those carrying severe consequences on
personal liberty, must be interpreted strictly and literally, and the Courts are
not permitted to expand their scope by importing presumed legislative intent
and where the language of a statute is plain and unambiguous, it must be
given effect to as it stands, irrespective of consequences.
9. Reference can also be made to New India Sugar Mills Ltd. v.
Commissioner of Sales Tax, Bihar, AIR 1963 SC 1207 and Polester & Co.
Ltd. v. Additional Commissioner of Sales Tax, New Delhi, AIR 1978 SC
897, wherein it was observed by Hon'ble Supreme Court that no words can be
added to or subtracted from a statutory provision unless such construction is
unavoidable to prevent absurdity and that Courts cannot re-draft legislation
5 of 7
CRR No. 2346 of 2025 (O&M) -6-
under the guise of interpretation. Similar view was taken by the Hon'ble
Supreme Court in Vatan Mal v. Kailash Nath, AIR 1989 SC 1534 and
Shashikant Laxman Kale v. Union of India, AIR 1990 SC 2114.
10. Further, reliance can also be placed upon State of Tamil Nadu v.
Sivarasan @ Raghu, (1997) 1 SCC 682, wherein the Hon'ble Supreme Court
had underscored that stringent penal laws demand stricter compliance and
interpretation and that in matters concerning bail, any interpretation impacting
personal liberty must lean in favour of the subject rather than the prosecution.
11. On summarizing the ratio of law laid down in the aforecited case,
it can be stated that the expression "commercial quantity" under Section
2(vii-a) of the Act is to be construed strictly and literally and only a quantity
greater than that specified in the Central Government notification can be
treated as commercial. Consequently, it is crystal clear that the notified
quantity itself falls outside the ambit of commercial quantity and the rigors of
Section 37 of the Act are attracted only when such statutory threshold is
crossed.
12. Now adverting to the peculiar facts of the present case. At the
cost of repetition, it can be mentioned that the quantity of the contraband
allegedly recovered from the petitioner and co-accused was exactly 2.5 kgs. of
opium, which was obviously not greater than the quantity specified in the
notification in relation to opium. Hence, the challan in this case was required
to be presented within a period of 90 days from the date of registration of the
FIR i.e. 06.05.2025. However, the same was presented only on 23.09.2025,
which was beyond the period of 90 days. The petitioner had filed the
6 of 7
CRR No. 2346 of 2025 (O&M) -7-
aforementioned application for grant of default bail on 11.09.2025 and by that
day, the challan was admittedly not presented. A perusal of the impugned
order would show that the learned the trial Court had observed that in the
absence of the FSL/chemical examiner's report, the exact nature of the
recovered substance and its quantity for the purposes of the Act could not be
conclusively determined. Since no chemical test had been conducted at that
stage, the learned trial Court was not in a position to determine as to whether
the substance was indeed a prohibited narcotic, and if so, whether it fell within
commercial or non-commercial quantity. However, now the FSL report has
been received, which confirmed that the recovered substance was opium.
Hence, it leaves no room for any ambiguity about the period prescribed for
presentation of challan, which was 90 days.
13. In view of the discussion as made above, this Court is of the
considered opinion that the present petition has merit. Accordingly, the same
is accepted. The impugned order dated 12.09.2025 is hereby set aside. As a
consequence, the petitioner is directed to be released on bail, subject to his
furnishing personal/surety bonds to the satisfaction of the learned trial
Court/Duty Magistrate, concerned.
30.01.2026 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
7 of 7
