1. Applicant-Amar has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’), for releasing him on bail, during the pendency of trial, in case FIR No. 146 of 2023, dated 9th July, 2023, registered with Police Station Sadar, District Solan, H.P., under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

2. According to the applicant, he is an innocent person and has falsely been implicated, in this case, at the instance of police. According to him, he has no concern with the offences, for which, he has been arrested by the police.

3. The applicant has also asserted that he is having deep roots in the society and ready to abide by the conditions to be imposed by this Court, in case, ordered to be released on bail.

4. According to the applicant, he is a poor person and the only bread earner of the family.

5. On the basis of above facts, Mr. Mohan Singh, learned counsel for the applicant, has given certain undertakings, for which, the applicant is ready to abide by, in case ordered to be released on bail.

6. When put to notice, the police has filed the status report, disclosing therein, that 09-07-2023, when, police party headed by HC Dinesh Kumar was on patrolling duty in connection with Narcotic drugs and was present near Sagar Ratna on Shamti Bye-pass bifurcation, then, at about 6:20 p.m., secret information was received that near Shamlech petrol pump, one scooty bearing No. HP-63A-3974 is parked, in which, two persons namely Rakesh Kumar and Amar Nath (applicant) had come, who used to deal in the sale/purchase of Chitta/Heroin and if raid is conducted, huge quantity of Heroin can be recovered.

6.1. On finding the secret information to be credible, the information under Section 42(2) of the NDPS Act was prepared and sent to the Supervisory Officer through C. Punit Kumar. Then, Sh. Ashu Chandel was associated in the investigation alongwith other police personnel and thereafter, they went to Petrol Pump, Shamlech. At about 6:50 p.m., they reached on the spot and found Scooty bearing No. HP- 63A-3974 parked there. Along-with Scooty, two persons were also standing with helmets in their hands. On seeing the police party, accused Rakesh tried to escape, as many other cases of similar nature are pending against him, but, was apprehended alongwith applicant.

6.2. They were apprised of the secret information.

Thereafter, police party gave their search to the accused persons, but nothing incriminating was found. Thereafter the Scooty was searched in presence of the witnesses and from the dickey of the Scooty, one transparent pouch, duly interlocked in a black colour bag, was recovered and on opening the same, light brown coloured substance was recovered, which, on checking was found to be Chitta/heroin.

6.3. On weighment, the substance was found to be 10.74 Grams. Thereafter, the recovered substance was put in the same manner, duly sealed with three seals of Seal Impression 'V, sample of which was taken on separate piece of cloth. NCB-1 form in triplicate, was filled, upon which, impression of seal was also embossed. The parcel along-with NCB-1 form, scooty along-with keys and helmets and sample of seal were taken into possession vide separate memo. The videography and photography of the spot was done.

6.4. The alleged act of accused persons, in connivance with each other, having been in possession of 10.74 Grams heroin, comes within the purview of Sections 21 and 29 of ND & PS Act, as such rukka was prepared and case was registered. During further course of investigation, spot map was prepared. Other codal formalities were completed. The accused persons were arrested. Case property was produced before SHO for resealing. Proceedings under Section 52-A of the NDPS Act was also got conducted from Id. JMFC-1, Solan.

Special report, in the present case, was sent to Supervisory Officer under Section 57 of NDPS Act. The recovered contraband was sent to FSL, Junga and its report is still awaited.

6.5. During interrogation accused persons disclosed that they have no permanent abode nor has house or landed property. They disclosed that they, alongwith their families, are residing in slum areas in the shanties/Jhuggis. Accused Rakesh disclosed that he is addicted of consuming Chitta. Both the accused persons had taken the cannabis from daughter of accused Rakesh, who asked them to deliver the same near Shamlech Petrol Pump.

6.6. Accused Amar (applicant) disclosed that he had come alongwith Rakesh in the greed of money and alcohol. As per police report, accused Rakesh is already involved in about 20 cases of NDPS Act and is selling the Chitta/Heroin to young generation. Both the accused persons are indulged in the trade of selling Chitta.

7. Apart from this, it is also case of the police that the applicant in connivance with other accused namely, Rakesh Kumar, against whom, about 20 cases have stated to be registered, has committed the offence. The applicant was also aware about the criminal background of accused Rakesh.

The antecedents of applicant have also not been verified as yet.

8. Lastly, it has been apprehended that applicant is not having permanent abode and he is having no property at Solan and in case, ordered to be released on bail, he may not be available for the trial and may also indulge in the similar activities.

9. On the basis of above facts, a prayer has been made to dismiss the application.

10. The contraband, allegedly recovered from the possession of the applicant, does not fall within the definition of ‘commercial quantity’. The same falls within the definition of ‘intermediate quantity’. Since the contraband, so recovered, does not fall within the definition of commercial quantity, as such, rigors of Section 37 of the NDPS Act are not applicable, in the present case.

11. Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, then, the presumption of innocence is still available to the accused.

12. The applicant is in judicial custody and this fact demonstrates that his custodial interrogation is no longer required by the police.

13. So far as the other apprehensions of the police qua the fact that the applicant has no permanent abode in Himachal Pradesh and having no property in District Solan is concerned, for that purpose, stringent conditions can be imposed, in case, he is ordered to be released on bail.

14. The chances of commencement and conclusion of trial in near future are not so bright, as such, no useful purpose would be served by keeping him in judicial custody for indefinite period. The relief, cannot be declined merely on the basis of the fact that number of cases have been registered against the co-accused of the applicant. The applicant cannot be penalized for the sin committed by his co-accused.

15. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

16. The applicant is ordered to be released on bail in case FIR No. 146 of 2023, dated 9th July, 2023, registered with Police Station Sadar, District Solan, H.P., under Sections 21 and 29 of NDPS Act, on his furnishing personal bail bond, in the sum of 50,000/-, with two sureties, out of which, one surety shall be local, of the like amount, to the satisfaction of learned Special Judge, Solan. This order, however, shall be subject to the following conditions:

"a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court."

17. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

18. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.

19. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Solan through e- mail, with a direction to enter the date of grant of bail in the e-prison software.

20. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Solan is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent of Jail, Solan is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.