1. This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.VIII(IO)15/NCB/JZU/2022 registered at Police Station NCB Jodhpur, for offences under Sections 8/21, 23, 28, 29, 30 and 60 of NDPS Act.

2. Learned counsel for the petitioner submitted that as per prosecution, on 07.06.2022, recovery of narcotics (heroin) weighing 3.480 kg and one Redmi mobile phone was effected from co-accused namely Nirmal Singh @ Sonu and Ravindra Singh @ Kaka, who were apprehended in connection with the contraband by the BSF personnel at BOP Khayaliwala 34 Battalion, Raisinghnagar, District Sri Ganganagar. The above named co- accused in their statements informed that the petitioner and another co-accused Jaspreet Singh @ Jass are also involved with them in commission of crime. Upon the statements of co-accused persons, the petitioner was apprehended by BSF team after his crossing the toll plaza 9A, towards Sriganganagar. The petitioner at that time, was in a Creta car bearing registration No.PB19N5550.

3. Learned counsel submitted that nothing has been recovered from the conscious possession of the petitioner and he has been implicated in the present case solely on the basis of statements given by other co-accused persons. Learned counsel submitted that the place from where the petitioner was apprehended, is at a travel distance of about 56kms. from the place where co-accused persons Nirmal Singh @ Sonu and Ravindra Singh @ Kaka were apprehended by BSF personnel.

4. Learned counsel submitted that except the statements given by co-accused persons namely Nirmal Singh @ Sonu and Ravindra Singh @ Kaka to officials of NCB under Section 67 of the NDPS Act, there is no other direct or corroboratory evidence available on record indicating his involvement in commission of alleged crime.

5. Learned counsel submitted that the petitioner is young boy of 29 years who is sole bread earner for the family. It was urged that the petitioner is in judicial custody since 08.07.2022 and there are seventeen cited prosecution witnessess; charges are yet to be framed and trial will take sufficiently long time to conclude and no case of similar nature is pending against the petitioner.

6. On the strength of these grounds, learned counsel prayaed that bail may be granted to the petitioner.

Per contra, learned counsel for the Union of India submitted that during investigation of the case, voluntary statements of Nirmal Singh @ Sonu and Ravindra Singh @ Kaka were recorded in which they informed that they along with present petitioner are involved in commission of alleged crime. Learned counsel submitted that the present petitioner has been named by the co- accused persons. Learned counsel submitted that all the accused persons have confessed their active involvement in cross-border smuggling of heroin through drone, using which heroin used to be dropped in Indian soil by a Pakistan based smuggler namely Miya.

7. Learned counsel submitted that as per the plan divulged by the accused persons, co-accused Nirmal Singh @ Sonu and Ravindra Singh @ Kaka were in contact with Pakistani smuggler Miya through his virtual mobile No.+995-544440873. Both the accused-persons were present at the Indo-Pak border on the intervening night of 06-07 June 2022, to receive the consignment of heroin which was to be dropped through drone from Pakistan into India. As per the plan, the present petitioner and co-accused Jaspreet @ Jass were waiting for confirmation and arrival of narcotic contraband (heroin) from Indo-Pak border area to general area.

8. Learned counsel submitted that due to vigilance shown by BSF troops, Nirmal Singh @ Sonu and Ravindra Singh @ Kaka were apprehended on the spot along with the contraband whereas on the basis of their statements, the petitioner and co-accused Jaspreet @ Jass were apprehended in Hyundai Creta car when they were waiting for other co-accused persons.

9. Learned counsel submitted that the statements of Nirmal Singh @ Sonu and Ravindra Singh @ Kaka under Section 67 of the NDPS Act led to discoveries of facts and are further corroborated by the apprehension of the petitioner and co-accused Jaspreet @ Jass, who were travelling from Padampur to Sriganganagar in Creta car bearing registration No.PB19N5550. Thus, even if the arguments advanced on behalf of the petitioner are taken on their face value, the confessional statements of co-accused Nirmal Singh @ Sonu and Ravindra Singh @ Kaka to the extent of discoveries of facts are admissible under Section 27 of the Indian Evidence Act.

10. Learned counsel further submitted that CCTV footage has been procured by the officials of NCB from the owner of one India Snacks Bar, Padampur dated 06.06.2022 i.e. the date of incident, wherein the petitioner along with other co-accused persons can be seen entering and sitting/ eating in the hotel. Learned counsel further submitted that CCTV footage of India Snacks Bar was provided by the hotel owner in a fresh pen drive and certificate under Section 65B of Indian Evidence Act had been obtained in this regard.

11. Learned counsel submitted that the location where the consignment of contraband (heroin) was to be dropped through drone was fed/ stored in a Redmi mobile phone, recovered from co-accused Ravindra Singh @ Kaka which was given to him by another- Rajveer Singh @ Raju, who is absconding. Learned counsel submitted that during the course of investigation, it was revealed that the present petitioner had made Whatsapp conversation with Rajveer Singh @ Raju on his virtual number from his own virtual number. The attention of the Court was also drawn towards the screenshots of these Whatsapp calls annexed to the complaint filed by the NCB before competent criminal court. Learned counsel submitted that sufficient evidence is available on record indicating involvement of the present petitioner in the commission of alleged crime. He thus, implored the Court not to enlarge the petitioner on bail.

12. Learned counsel for the petitioner rebutting the arguments put forth by learned counsel for NCB, while maintaining that there is no direct or corroboratory evidence available on record showing involvement of the petitioner in commission of alleged crime, emphasised that in the CCTV footage procured from India Snacks Bar, Padampur, the petitioner is not visible and thus, his presence is not established even through the CCTV footage.

13. Learned counsel further submitted that the petitioner has never met any person namely Rajveer and nothing incriminatory was found from the alleged mobile recovered from the petitioner. It was submitted that the calls or messages between the petitioner and Rajveer have no past history.

14. Learned counsel for the NCB in reply to the submissions, contended that the context in which calls or messages were received by the present petitioner from Rajveer Singh and the relevance of these calls and messages bereft of past history, prior to preparation of seizure memo is a matter to be considered by the competent criminal court during the course of trial.

Learned counsel submitted that in NDPS cases, the Court is not required to go into minutest of details, in order to find out whether the petitioner is involved in the commission of alleged crime or not. The Court is only required to see whether on the basis of the material produced before it, reasonable grounds are available before it to indicate involvement of the petitioner in commission of alleged crime.

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

Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985 is reproduced below for ready reference:-

“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 [offences 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.]”

16. Hon’ble the Supreme Court in the case of State of Madhya Pradesh vs. Kajad reported in (2001) 7 SCC 673, [LQ/SC/2001/1975] had observed 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.”

17. Similarly, Hon’ble the Supreme Court in the case of Union of India vs. Md. Nawaz Khan reported in (2021) 10 SCC 100 [LQ/SC/2021/3058 ;] considered the position of law with regard to Section 37 of NDPS Act and held that the test which the courts are required to apply while granting bail is that there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Considering the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.

18. Hon’ble the Supreme Court of India in the case of Union of India vs. Shiv Shankar Kesari reported in (2007) 7 SCC 798, [LQ/SC/2007/1115] was pleased to hold that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of guilt against accused-petitioner, however, the Court is required to see if there are reasonable grounds that the accused is not guilty and record its satisfaction about the existence of such grounds.

19. Having considered facts and circumstances of this case, this Court prima facie finds that the petitioner has been arrested for offences under the NDPS Act involving contraband (heroin) greater than the commercial quantity.

20. This Court prima facie in view of the facts and circumstances of the case, finds sufficient force in the argument of learned counsel for the NCB that the confessional statements of co-accused persons Nirmal Singh @ Sonu and Ravindra Singh @ Kaka recorded under Section 67 of the NDPS Act leads to discoveries of fact and is corroborated by the fact that the petitioner was travelling from Padampur to Sriganganagar in Creta car bearing registration No.PB19N5550. This Court prima facie finds that Whatsapp calls/ conversations between the petitioner and Rajveer Singh @ Raju, who had allegedly handed over the Redmi mobile phone to another co-accused Ravindra Singh @ Kaka, containing the location where the consignment of contraband (heroin) was to be received from Pakistan through drone, also leads to discovery of fact in furtherance of the confessional statements made by the petitioner and co-accused persons.

21. This Court also finds merit in the argument advanced by learned counsel for the NCB that keeping in view the material available on record viz. the statements under Section 67 of the NDPS Act followed by subsequent discoveries of facts, CCTV footage, telephonic/ Whatsapp conversations and calls/ messages, the petitioner cannot be presumed to be not guilty of the offence that he is charged with.

22. This Court prima facie finds that the petitioner and co-accused persons are involved in cross-border smuggling/ trafficking of narcotic contraband with the help of drones hinting towards their role in a larger drug syndicate.

Prima facie, the innocence of the petitioner thus, cannot be presumed at this stage. This Court is prima facie satisfied that there are no reasonable grounds to believe that the petitioner is not guilty or he is not likely to commit any offence under the NDPS Act while on bail.

23. In view of aforesaid facts, circumstances and keeping in mind the various provisions of NDPS Act and precedent law, this Court is of the considered view that the twin conditions contained in Section 37 of the NDPS Act are not satisfied. Thus, this Court is not inclined to enlarge the present petitioner on bail.

24. Accordingly, the instant application for bail stands dismissed.