Dinesh Kumar Singh, J. - This bail application under Section 439 Cr.P.C. has been filed seeking bail in FIR No.0337 of 2020 under Section 8/20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short 'N.D.P.S. Act'), Police Station Antoo, District Pratapgarh.

2. As per the prosecution story, on 16.07.2020, the Station House Officer, Mr. Manoj Kumar Tiwari, Police Station Antoo, Pratapgarh along with other members of his team was checking suspicious vehicles and wanted criminals. He received an information/input from in-charge S.O.G. that some illegal articles were suspected to be delievered in the area of the police station under his jurisdiction. On this information, checking points were alerted and the personnel posted there, were directed to check vehicles with alertness and alacrity. On specific inputs regarding two vehicles, the police party reached at the place where these vehicles were parked and, some articles were being downloaded from truck. The police party noticed that sacks were being transferred from truck to dicky of the car standing there. These vehicles were encircled by the police team and five people present in those vehicles who tried to flee away, were apprehended. One of them was the present accused-applicant and from his possession, Rs.7,000/- was recovered. From other accused also money was recovered. In the truck bearing Reg.No.UP44AT 1312, sacks filled with narcotic substance were found. Similarly, in the dicky of the Car No.UP32LL 8788 KIA SELTOS, two sacks of white color filled with some substance were found. The accused accepted that sacks were having Marizuana/Ganja.

3. All five persons including the accused-applicant were taken in custody at 7:30 P.M. and were made aware of their rights under Section 50 of the N.D.P.S. Act. They were asked to go with the police party before the Gazetted Officer for their personal search. However, these persons did not respond. Since, it was a large quantity of Marizuana/Ganja which was found in two vehicles, the circle officer was informed who came on the spot and in his presence and directions truck and car were searched in accordance with law. Some of the sacks were opened, and it was found that the substance inside the sack was smelling like Marizuance/Ganja.

4. On investigation, the accused-applicant told the police that he had been bringing Marizuance/Ganja from Korapur, Vishakhapatnam in trucks ferrying coal with the help of these persons taken in custody. Total contraband recovered from the truck and the car was 1,606.8 Kg which was stacked in 48 sacks. Samples from all the sacks were collected. The market value of the contraband recovered was more than two crores. Out of 48 sacks, 3 sacks were recovered from the dicky of the car. The truck in question belongs to the father of co-accused-Ravi Yadav and, the car was of the present accused-applicant.

5. Heard Mr. H.G.S. Parihar, Senior Advocate assisted by Ms. Minakshi Singh Parihar, learned counsel for the accused-applicant and Mr. Rao Narendra Singh, learned A.G.A. for the State.

6. It has been submitted on behalf of the accused-applicant that the accused-applicant was arrested on 15.07.2020 but his arrest was shown on 16.07.2020. In para 8 of the affidavit filed in support of the bail application this fact has been specifically mentioned. There is no specific denial to this averment in the counter affidavit filed by the State. It has further been submitted that charge-sheet has been filed in the case. The accused-applicant has no concern with the case and recovery allegedly made from the car of the accused-applicant is a false recovery. It has been also submitted that charge-sheet has been submitted without Forensic Science Laboratory's report of the contraband allegedly recovered form the possession of the accused-applicant. The accused-applicant has criminal history of three cases which are mentioned in para 28 of the affidavit as hereunder:-

(i) Case Crime No.470 of 2009 under Sections 18/20 N.D.P.S. Act, Police Station Aaspur Deosara, Pratapgarh.

(ii) Case Crime No.26 of 2010 under Section 2/3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act, Police Station Aaspur Deosara, Pratapgarh.

(iii) Case Crime No.37 of 2019, under Section 8/20 of the N.D.P.S. Act, Police Station Aaspur Devsara, Pratapgarh.

7. It is submitted that the criminal history of the accused-applicant has been explained. In the first case i.e. Case Crime No.470 of 2009 (supra), the accused-applicant has been acquitted by the trial court vide judgment and order dated 27.01.2016 and in other two cases the accused-applicant has been enlarged on bail by this Court. Bail orders have been placed on record with the bail application.

8. He has thus, submitted that prima facie, the accused-applicant has not committed any offence and in future there is no possibility of him committing similar offence and therefore, he is entitled to be enlarged on bail. Learned counsel for the accused-applicant has placed reliance on the judgment of the Supreme Court in the case of Union of India versus Shiv Shankar Kesari, (2007) 7 SCC 798 [LQ/SC/2007/1115] in support of his submissions.

9. On the other hand, Mr. Rao Narendra Singh, learned A.G.A. appearing for the State has opposed the bail application and has submitted that recovery of such a large quantity of contraband from two vehicles of the present accused-applicant and other co-accused cannot be doubted. Search was conducted in presence of the Gazetted Officer. All 48 sacks filled with Marizuana were recovered and total quantity recovered from the possession of the accused-applicant and others is 1606.8 kg. He has further submitted that the accused-applicant has criminal history of identical cases and while he was on bail, he has committed the present offence. It has been further submitted that the accused-applicant does not satisfy the twin conditions mentioned under Section 37(1)(b) of the N.D.P.S. Act and, therefore, he is not entitled for bail.

10. It has been further submitted that in the counter affidavit filed on behalf of the State, averments in para 8 of the affidavit filed in support of the bail application have been said to be wholly incorrect and denied. Learned A.G.A. has further submitted that judgment in the case of Union of India vs Shiv Shanker Kesari (supra) does not support the case of the accused-applicant but it supports the prosecution case. The two conditions i.e. satisfaction of the Court that there are reasonable ground for believing that the accused-applicant is not guilty and, he is not likely to commit any offence while on bail, are not satisfied in the present case inasmuch as the accused-applicant has criminal history of identical cases and while on bail, he has committed another offence. Recovery of such a large quantity of narcotic substance from two vehicles belonging to the accused-applicant and other co-accused cannot be doubted and therefore, there is no ground to believe that the accused-applicant is not guilty of commission of the offence. He, therefore, has submitted that the present application is liable to be rejected.

11. I have considered the submissions advanced on behalf of the learned counsel for the accused-applicant and learned A.G.A. for the State.

12. There is no denial from the accused-applicant that the car in question does not belong to him or such a large quantity of the contraband was not recovered from two vehicles. Recovery of contraband from two vehicles was made in the presence of Gazetted officer and, there has been no violation of Section 50 of the N.D.P.S. Act. The accused-applicant has criminal history of identical cases and while he was on bail, he has allegedly committed the present offence.

13. Section 37 of the N.D.P.S. Act reads as under:-

"37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in Clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."

14. Therefore, unless two conditions i.e. (i) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty: and (ii) he is not likely to commit any offence while on bail, are satisfied, the accused cannot be released on bail as this is the bar which operates while considering the bail application under the provisions of the N.D.P.S. Act if the quantity of contraband recovered is above the commercial quantity. The Supreme Court in the case of Union of India vs Shiv Shanker Kesari (supra) in para 11 and 12 has held as under:-

"11. The court while considering the application for bail with reference to Section 37 of theis not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

12. Additionally, the court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion."

15. The Supreme Court in the case of Satpal Singh vs State of Punjab, (2018) 13 SCC 813 [LQ/SC/2018/397] has held that in case of bail under the provisions of N.D.P.S. Act where quantity of contraband is more than the commercial quantity prescribed under the Statute, reference to Section 37 of the N.D.P.S. Act has to be taken into consideration and the level of satisfaction as prescribed under Section 37(1)(b) of theis required to be recorded. If the Court granting bail has not taken into consideration the provisions of Section 37 of the N.D.P.S. Act and, recorded the level of satisfaction as mandated under Section 37 of the N.D.P.S. Act, the order granting bail to such an accused would not be sustainable.

Para 13 and 14 of the aforesaid judgment are extracted hereinbelow:-

"13. In any case, the protection under Section 438 CrPC is available to the accused only till the court summons the accused based on the charge-sheet [report under Section 173(2) CrPC]. On such appearance, the accused has to seek regular bail under Section 439 CrPC and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 CrPC that does not mean that he is automatically entitled to regular bail under Section 439 CrPC. The satisfaction of the court for granting protection under Section 438 CrPC is different from the one under Section 439 CrPC while considering regular bail.

14. Be that as it may, the order dated 21-9-2017 [Beant Singh v. State of Punjab,2017 SCCOnLineP&H 3801] passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 CrPC without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21-9-2017 [Beant Singh v. State of Punjab,2017 SCCOnLineP&H 3801] is only to be set aside and we do so."

16. Considering the facts of the present case, the Court does not find any reasonable ground to believe that the accused-applicant prima facie has not committed the offence and, would not commit any offence in future while on bail inasmuch as he has criminal history of identical cases. Since, in the present case bar prescribed under Section 37(1)(b) of the N.D.P.S. Act is not crossed, this Court does not find any ground to enlarge the accused-applicant on bail

17. This bail application is rejected.