1. Bail petitioner namely Gaurav Mangla, who is behind the bars since 17.11.2020, has approached this Court in the instant proceedings filed under Section 439 of Cr.P.C., for grant of regular bail in case FIR No. 348 of 2020 dated 9.11.2020, under Sections 22 and 29 of the NDPS Act, registered at PS Nalagarh, District Solan, H.P.

2. Respondent-State has filed the status report, perusal whereof reveals that that on 8.11.2020, police after having received secrete information that person namely Dharam Pal alias Nandu indulges in illegal trade of narcotics, raided the fields comprising khasra No. 6691 Halqa Nihar Nangal and allegedly recovered huge/commercial quantity of prohibited drugs from heap of rostrate in the presence of independent witnesses. Since no plausible explanation ever came to be rendered on record qua the possession of the aforesaid quantity of contraband by the Dharam Pal, police after completion of necessary codal formalities lodged FIR as detailed herein above. Allegedly, since during investigation, Dharam Pal disclosed to the police that he procured the aforesaid quantity of prohibited drugs from person namely Sunil Kumar and petitioner i.e. Gaurav Mangla, police apprehended the present bail petitioner on 17.11.2020 and since then, he is behind the bars, whereas other person Sunil Kumar is absconding. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.

3. Mr. Ajay Kochhar, learned senior counsel duly assisted by Mr. Manoj Pathak, Advocate, submits that petitioner has been falsely implicated, because at no point of time, commercial quantity of contraband came to be recovered from the conscious possession of the bail petitioner. He contends that as per own case of the petitioner, huge quantity of contraband came to be recovered from the heap of rostrate in the fields owned and possessed by co-accused Dharam Pal alias Nandu. Mr. Kochhar, learned senior counsel further states that petitioner has been named in the FIR on the basis of statement made by co-accused that he had been procuring the prohibited drugs from persons namely Sunil Kumar and the bail petitioner, but there is no evidence worth credence available on record suggestive of the fact that bail petitioner indulges in illegal trade of narcotics. He submits that though police with a view to implicate the petitioner has mentioned with regard to financial transaction inter-se bail petitioner and co-accused Dharam Pal, but there is no material available on record suggestive of the fact that money ever came to be transferred in the bank account of the petitioner, rather same has been transferred in the account of Smt. Darshana Mangla and Vishal i.e. tenant of the bail petitioner, who at no point of time, ever gave statement to the police that their bank accounts were being used by the bail petitioner. Learned senior counsel further submits that as per case of the prosecution, money was transferred in the bank accounts of Vishal and Darshna Mangla through Spice Money being run by persons namely Harmesh and Chaman, who have been not associated in the investigation. Lastly, Mr. Kochhar states that since bail petitioner is behind bars for more than two years and four prosecution witnesses have been examined so far, coupled with the fact that one of the independent witness has already resiled from the earlier statement given to the police, bail petitioner deserves to be enlarged on bail on the ground of inordinate delay in conclusion of trial. In support of his aforesaid submission, Mr. Kochhar invited attention of this court to the judgment dated 22.12.2022, passed in Cr. MPM No. 2521 of 2022, Prem Chand v. State of Himachal Pradesh, whereby this Court having taken note of the various judgments of Hon'ble Apex Court as well as coordinate Bench of this Court proceeded to enlarge the accused in that case on bail on ground of inordinate delay in conclusion of trial.

4. While fairly admitting factum with regard to filing of the challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General states that keeping in the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency. Mr. Kahol further submits that there is overwhelming evidence available on record suggestive of the fact that bail petitioner indulges in the illegal trade of narcotics and as such, it may not be in the interest of justice to enlarge him on bail because in the event of his being enlarged on bail, he may not only flee from justice, but may also temper with the prosecution evidence. In support of his aforesaid submissions, learned Additional Advocate General invited attention of this Court to the statement of co-accused, wherein he categorically stated that he used to procure the narcotics from the present bail petitioner. He further submitted that as per record of financial transaction adduced on record, money was being transferred by the co-accused in the bank accounts of mother of the bail petitioner Darshana Mangla and his tenant Vishal and as such, it cannot be said that he has been falsely implicated. He further submits that since as of today, four prosecution witnesses have been examined, there is no likelihood of further delay in trial and as such, prayer made for grant of bail deserves outright rejection.

5. Having heard the learned counsel for the parties and perused material available on record, this Court finds that commercial quantity of contraband never came to be recovered from the conscious possession of the present bail petitioner, rather he came to be named in the FIR on the basis of statement of co-accused Dharam Pal alias Nandu, from whose conscious possession, contraband was recovered. Though co-accused Dharam Pal allegedly disclosed to the police that he was procuring the consignment of narcotics from the bail petitioner, but at this stage, there is no evidence worth credence available on record to prove the aforesaid claim if any, of co-accused Dharampal. Police with a view to connect the bail petitioner with the contraband allegedly recovered from the conscious possession of the co-accused Dharam Pal has placed heavy reliance upon the financial transaction inter-se main accused, mother of the bail petitioner Darshna Mangla and Vishal, i.e. tenant of the present bail petitioner Interestingly, police neither associated Darshana Mangla nor Vishal in the investigation. There is no statement, if any, given by the aforesaid witnesses to the police with regard to use of their accounts by the petitioner. Apart from above, as per own case of the prosecution, money was transferred through Spice Money being run by persons namely Harmesh and Chaman having their office at Nalagarh, but even these persons have not been examined. Since persons namely Darshan, Vishal, Harmesh and Chaman have nowhere stated something specific with regard to transfer of money, if any, at the behest of Dharampal alias Nandu and use of their accounts by the petitioner, it would be too premature at this stage to connect the petitioner accused with the alleged commission of offence punishable under Section 22 and 29 of the Act. Moreover, petitioner has been implicated in the case at hand on the basis of statement made by co-accused Dharampal. The Hon'ble Apex Court in case Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, [LQ/SC/2020/754] has categorically held that disclosure statement, if any, made under Section 67 of the NDPS Act, is inadmissible and same cannot be used as confessional statement in the trial of an offence under Section 67 of the Act. Relevant para of the aforesaid judgment reads as under:

"155. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

156. The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.

157. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298 [LQ/SC/2011/953] are correct in law.

158. We answer the reference by stating:

(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

6. Recently the Hon'ble Apex Court in case titled State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta and Anr, Special Leave to Appeal (Crl.) No. 242 of 2022 (arising out of diary No. 22702 of 2020) decided on 10.1.2022, again reiterated that confessional statement recorded under Section 67 of the NDPS Act, will remain inadmissible in the trial of an offence under the Act. Hon'ble Apex Court in this case upheld the order/judgment passed by the High Court of Karnataka granting bail to the accused arrested by the petitioner NCB on the basis of confessional/voluntary statement of the co-accused under Section 67 of the NDPS Act. Apart from above, Hon'ble Apex Court in the aforesaid judgment has held that CDR details of some of the accused or the allegations of tempering of evidence on the part of the respondents is an aspect that will be examined at the stage of the trial.

7. No doubt, rigour of section 37 of the Act are attracted in the present case because commercial quantity of contraband came to be recovered from the conscious possession of bail petitioner but bare perusal of provisions contained under S. 37 nowhere suggests that Court cannot grant bail in cases involving commercial quantity rather in such cases, court after having afforded due opportunity of hearing to public prosecutor can proceed to enlarge the petitioner-accused of transporting/possessing commercial quantity, if it is satisfied that he/she has been falsely implicated and in the event of bail, he/she will not indulge in such activities again.

8. In the case at hand, learned counsel for the petitioner has been able to point out certain circumstance suggestive of the fact that at present, there is no concrete evidence to connect the bail petitioner with the contraband. Moreover, there is no material available on record suggestive of the fact that in past bail petitioner had been indulging in these activities and as such, there is no likelihood of petitioner indulging in illegal trade of narcotic, if ordered to be enlarged on bail. Leaving everything aside, prayer made on behalf of the petitioner for grant of bail deserves to be considered on the ground of delay in trial.

9. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl.) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.

10. Placing reliance upon aforesaid judgments, a Co-ordinate Bench of this court in CrMP(M) No. 1328 of 2022 titled Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022, also ordered for enlargement of an accused, who was allegedly apprehended carrying commercial quantity of Tramadol, on the ground of delay in conclusion of trial.

11. Apart from above judgment, Co-ordinate Bench of this court while granting bail vide order dated 22.3.2021 in CrMP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal Pradesh, also placed reliance upon a judgment delivered by a three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit Singh Moni v. State of Himachal Pradesh, decided on 12.10.2020, wherein petitioner was allegedly found in possession of 3285 grams of charas from a vehicle, wherein four other persons were sitting.

12. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred to order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.

13. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail.

14. The learned Counsel appearing for the petitioner submits that in Mohit Aggarwal, huge commercial quantity of 20 kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas, in the present case, the recovered quantity is little more than the commercial quantity.

15. In similar circumstances, in Cr. MP(M) No. 1328 of 2022, titled Roop Singh v. State of Himachal Pradesh, decided on 6th September, 2022, another Co-ordinate Bench of this Court, having taken note of inordinate delay in conclusion of trial, ordered enlargement on bail of the person, who was apprehended with 1.996 kg of charas.

16. In the instant case, bail petitioner is behind bars for more than two years and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial, keeping in view the fact that the bail petitioner is a first offender and there is no other case registered against him, apart from the present one.

17. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.

18. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr. decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

19. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 [LQ/SC/1991/350] has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

20. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, [LQ/SC/2017/191] Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

21. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, [LQ/SC/2010/1194] has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

22. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs. 5.00 Lakh with two local sureties surety in the like amount each, to the satisfaction of the learned trial Court, besides 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 him/her 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."

23. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

24. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.

25. A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.