1. The present bail applications have been filed under Section 439 Cr.P.C. by the single petitioner- Gopal Krishna @ Gopi S/o Sh. Norang Lal, who has been arrested in connection with F.I.R No.87/2021 (in CRLMB No.8258/2023) and F.I.R. No.88/2021 (in CRLMB No.8326/2023), registered at Police Station Gajsinghpur, District Sriganganagar, for the offences under Sections 8/22, 25 & 29 of the NDPS Act.

2. As per prosecution, on 29.08.2021, SHO, PS Gajsinghpura during routine round of the city at about 5:30 pm, signalled the petitioner to stop, who was riding motorcycle Hero CD Deluxe having registration No.RJ-13-SD-3352. During search, the petitioner was found carrying a black bag, from which 90 strips, containing 900 tablets of Tramadol Prolonged Release Tablets IP TRAMWEL SR 100, weighing 340 grams were recovered. On being inquired, the petitioner could not show any authorised license, permit or medical slip etc. to possess the recovered psychotropic substance. The police thereafter lodged FIR No.87/2021 against the petitioner for the offences under Section 8/22, 25 and 29 NDPS Act.

3. As far as FIR No.88/2021 lodged against the petitioner is concerned, as per prosecution, the police on 29.08.2021, recovered an abandoned saleti (gray) coloured bag from Khadwanja Road. On searching the bag, 100 strips containing 1000 tablets of Tramadol Prolonged Release Tablets IP TRAMWEL SR 100 were found.

4. As per prosecution, the petitioner during interrogation in connection with FIR No.87/2021, stated that the recovered saleti (gray) bag containing psychotropic substance was concealed by him near Khadwanja Road. As per prosecution, the psychotropic substance recovered from conscious possession of the present petitioner and Khadwanja Road was of same salt, company and having same batch numbers.

5. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel submitted that co-accused Surendra Kumar has already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 12.05.2022, while deciding S.B. Criminal Misc. Bail Application No.2834/2022. Learned counsel for the petitioner vehemently submitted that the petitioner in his disclosure statements stated that he had procured psychotropic substance from one Govind alias Govil Arora and his mobile numbers were also disclosed by the petitioner, however, Govind alias Govil Arora has not been impleaded as an accused by the investigating agency. Further, the prosecution story is self contradictory as at one hand, it says that one black bag containing psychotropic substance was recovered from conscious possession of the petitioner but at other hand, it says that another saleti (gray) bag was concealed by him at Khadwanja Road under the fear of police. Learned counsel submitted that there is nothing on record to indicate that if the psychotropic substance was not procured by the petitioner from Govind alias Govil, then how did the petitioner come into the possession of recovered psychotropic substance.

6. Attention of the Court was drawn towards the statements of Investigating Officer recorded before competent criminal court on 25.11.2022 as PW-1 to contend that even Investigating Officer could not satisfactorily explain involvement of the present petitioner in commission of alleged crime.

7. On the strength of these submissions, learned counsel for the petitioner implored the Court to enlarge the petitioner on bail.

8. Learned Public Prosecutor opposed the bail application and submitted that in the present case, psychotropic substance greater than commercial was recovered from the conscious possession of the petitioner. Learned Public Prosecutor submitted that the case of present petitioner is not akin to that of co-accused Surendra Kumar, who has been enlarged on bail. Learned Public Prosecutor submitted that as per prosecution, the motorbike of Surendra Kumar was being used by the present petitioner at the time when he was found in the possession of psychotropic substance. The defence of co-accused Surendra Kumar is that he had no knowledge about the fact that the motorbike borrowed by the petitioner is being used for transportation of contraband (psychotropic substance). Learned Public Prosecutor submitted that trial against Surendra Kumar is pending before competent criminal court and therefore, no benefit on that count can be granted to the petitioner.

Drawing attention of the Court towards the statements of Aditya Tiwari, Surendra Kumar and challan papers, learned Public Prosecutor submitted that investigating agency did not find involvement of Govind alias Govil in the commission of alleged crime. Rather, it was found that the petitioner is trying to falsely frame him in the present case. Learned Public Prosecutor submitted that the argument raised by learned counsel for the petitioner as to why the petitioner would conceal one bag at Khadwanja Road and carry another bag at the same time, has no force as there could be many reasons for an accused to do so. Even otherwise, the trial against the petitioner is pending before competent criminal court.

9. On these grounds, learned Public Prosecutor urged the Court not to grant concession of bail to the petitioner.

10. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

Section 37 of the NDPS Act reads as under:-

“37. Offences to be cognizable and non-bailable.

(1) Notwithstanding anything contained int 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 2 [offence under section 19 or section 24 or section 27A and also for offences involving commercial quantity] 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.”

11. Hon’ble the Supreme Court in a catena of cases has considered the aspect of bail when commercial quantity of contraband is involved in a case under the NDPS Act, holding that an accused of commission of offence under NDPS Act cannot be given concession of bail unless the twin conditions mentioned in Section 37 of the NDPS Act are satisfied. The Court has to record its findings as mandated by Section 37 of the NDPS Act, while granting bail to a person accused of the offences under NDPS Act in a case involving commercial quantity.

Hon’ble the Apex Court in the case of State of Madhya Pradesh Vs. Kajad reported in (2001) 7 SCC 673 [LQ/SC/2001/1975] was pleased to observe as under:-

“……Negation of bail is the rule and its grant an exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail, the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause

(b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the NDPS Act is uncalled for.”

12. Having heard learned counsel for the parties, challan papers, so also the statements of Investigating Officer (PW-1), this Court prima facie finds that the petitioner was found in conscious possession of contraband (psychotropic substance), greater than commercial quantity. This Court having gone through the material available before it also finds that prima facie reasonable grounds for believing that the psychotropic substance greater than commercial quantity was concealed by the petitioner at Khadwanja Road are available.

13. This Court is restraining itself from giving a finding on each and every argument raised before it during the course of arguments, on the present bail application as arguments have been duly countered by the learned Public Prosecutor. This Court is also conscious of the fact that recording of findings by this Court on the arguments raised before it during the course of hearing may prejudice the case of the petitioner during trial.

14. In view of the aforesaid discussion, this Court is not inclined to enlarge the petitioner on bail.

15. Consequently, the present Criminal Misc. Bail Application under Section 439 Cr.P.C. is dismissed.

16. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.

17. A copy of this order be placed in each file.