1. Applicant-Manga Singh, has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita (for short "BNSS") for releasing him on bail in case FIR No. 42 of 2023, dated 16.03.2023, under Sections 15, 21, 25, 29 and 61 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act'), with Police Station Indora, District Kangra, H.P.

2. According to the applicant, he is innocent person and has falsely been implicated, in the present case.

3. According to the applicant, the said case is primarily registered against three other accused persons, namely, Aman Kumar, Shibba and Sonu Kumar. In the said FIR, the applicant has been booked under Section 29 of the NDPS Act.

4. In the present case, the applicant was arrested on 18.3.2023 and thereafter, he is stated to be in judicial custody.

5. The investigation, in this case, is stated to be complete and the police has submitted the report, under Section 173(2) Cr.PC. and cognizance has been taken by the competent Court of law.

6. The bail has been sought on the ground that there is undue delay in the completion of the trial, as there are 41 witnesses in this case. This fact has been highlighted to show that the chances of conclusion of trial, against the applicant, in near future are not so bright.

7. The applicant has also asserted that on the statement of one accused Aman Kumar, in which he has disclosed that the contraband was purchased on the instructions of another accused, namely Sonu Kumar, and the said contraband is stated to be purchased from one Gopi Foreman. On the basis of the said statement, the FIR, in question, was lodged against Sonu Kumar, Aman Kumar and Shibba.

8. During investigation of the case, according to the applicant, accused Sonu Kumar has stated that he used to buy contraband from one Gopi and on 15.3.2023, Sonu Kumar sent the aforesaid accused Aman Kumar and Shibba for purchasing the contraband from Gopi. Accused Sonu Kumar did not mention the name of applicant to be associated in the alleged crime. Thereafter, on the statement made by accused Sonu Kumar, police official had visited the house of the applicant, from where, an amount of Rs. 2,23,000/- and poppy husk weighing 9.154 kgs were allegedly recovered.

9. The applicant himself has given the detail of the cases, which have been registered against him by pleading that although a stand has been taken by the police before the learned Special Judge about the registration of six cases against the applicant but according to him, he is not the primary accused in those cases. According to him, out of these six cases, he has not been named as accused in four cases and in remaining two cases, his name has been mentioned as Manga Singh @ Manga. As such, he is not known by the name of Gopi as alleged. This fact has been highlighted to show that in the statement of accused Aman Kumar, he has named one Gopi Foreman.

10. According to the applicant, he was not involved in the alleged crime, for which, he has been arrested by the police, in this case.

11. The applicant has also tried his luck before the learned Special Judge, Nurpur, District Kangra, H.P., by filing bail application, however, the said bail application was dismissed by the learned Special Judge, vide order, dated 12.7.2023. Thereafter, he has tried his luck by moving bail application, i.e., Cr.MP(M) No. 2857 of 2023 before this Court, which has also been dismissed on 14.12.2023.

12. Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial.

13. On the basis of the above facts, a prayer has been made to allow the application.

14. When put to notice, police has filed the status report, disclosing therein that on 15th March, 2023, ASI Chaman Singh, alongwith other police official, was present near SDM office, Indora. At about 10.00 p.m., I.O. ASI Chaman Singh received a secret information regarding the fact that two boys, namely, Aman and Child in Conflict with Law (CCL) are doing the business of heroin/chitta and they are coming from Kathgarh side to Indora in car No. HP-12J-7996. As per the information, if the said car is intercepted and searched, then, contraband in large quantity could be recovered. On this information, I.O complied with the provisions of Section 42(2) of the NDPS Act and submitted the report to the SDPO Nurpur, through constable Paramjeet.

14.1. Thereafter, two persons, namely, Mohan Singh and Roshan Lal, who were found near SDM office, Indora were associated in the raiding party, as independent witnesses. Thereafter picketing was done at place Kathgarh Road, which is stated to be 50 mtrs. away from the SDM office.

14.2. At about 10.25 p.m., I.O noticed one Alto Car, bearing registration No.HP-12J-7996, being driven by its driver, coming from Kathgarh side, in which, besides the driver, one person was sitting on the front seat. The police gave signal to stop the car. Consequently, the car was parked on the brim of the road. On inquiry, both the persons have disclosed their names as Aman Kumar and CCL. Both these persons were apprised about the reason for search of their vehicle, upon which, both of them had given their consent to search.

14.3. After giving their personal search, IO ASI Chaman Singh conducted the search of the car. When, bonnet of the car was opened, it was found that the contraband, i.e., heroin/chitta weighing 260 grams was kept concealed in the bonnet. The contraband was taken into possession. Other codal formalities were completed. The said vehicle was found to be registered in the name of one Man Singh, S/o Amar Singh.

14.4. Accused Aman has disclosed that recovered heroin was purchased by him for a sum of Rs. 3 lacs on 15.3.2023 from a person at Jalandhar, whose name, the accused has saved in his mobile phone as "Gopi Formen" (applicant). The said amount was given to him by Sonu, S/o Sham Lal. On the earlier occasion also, Sonu, on the reference made by accused, used to purchase heroin/chitta from the said person and also assured to give Rs. 15000/- to them for transporting the heroin from Jalandhar.

14.5. After completion of the codal formalities, the FIR, in question, was registered, against the applicant as well as his co-accused.

14.6. After the registration of the FIR, SI Naresh Kumar has been deputed as second IO in this case, who has recorded the statements of the witnesses under Section 161 Cr.PC. Thereafter, accused-Aman Kumar was arrested on 16.3.2023 at about 4.40 a.m. However, CCL was found juvenile, as such, he was not arrested. The contraband, so recovered, was produced before the Inspector SHO alongwith both the accused.

14.7. During investigation, third accused namely, Sonu, S/o Sham Lal was associated in the investigation and accused Sonu was arrested on 16.3.2023 at about 8.30 a.m. Accused-Aman Kumar and Sonu were produced before the court on 16.3.2023 and they were remanded to police custody till 18.3.2023.

14.8. As per the status report, during investigation, accused Sonu Ram has made the statement under Section 27 of the Indian Evidence Act, disclosing therein that he used to purchase heroin/chitta from Gopi, R/o Kartarpur, Distt. Jalandhar and on 15.3.2023, he deputed Aman and CCL to bring heroin/chita from Gopi from his village Kartarpur and they were sent through his vehicle No.HP-12J-7996. According to him, he can identify the lanterposh house of Gopi and also identify Gopi.

14.9. On 18.3.2023, accused Sonu identified accused Manga Singh alias Gopi (applicant), as the person, from whom, he used to purchase heroin/chitta. Real name of accused was found as Manga Singh @ Gopi, S/o Dalip Singh. After giving personal search by the raiding party, residential quarter of Manga Singh @ Gopi was conducted.

14.10. During search of the room, a black coloured envelop was recovered from the right drawer of the bed box. On checking, currency notes of the denomination of Rs. 2000/-, 500/-, 200/- and 100/- were recovered. One plastic sack was also recovered from the kitchen of the applicant, which, on checking was found containing poppy husk. On counting, currency notes were found to be Rs. 2,23,000/- and poppy husk, on weighment, was found to be 9.514 kilograms. After finding sufficient material against applicant Manga Singh, he was also arrested.

14.11. After completion of the investigation, report under Section 173(2), Cr.PC has been submitted before the learned Trial Court.

14.12. It is further case of the police that on 15.3.2023 when, accused Aman Kumar and Sonu Ram have disclosed, on inquiry, that they were deputed by accused Sonu to bring heroin/chitta from Manga Singh @ Gopi (applicant), accused Sonu had paid a sum of Rs. 3 lacs in cash to them. Accused Aman and CCL had gone in the car owned by Sonu and purchased 260 grams heroin against this amount.

15. Apart from this, the police has given the history of the applicant, which is reproduced as under:-

16. As per the stand taken by the police, the applicant, who is described as Manga Singh @ Gopi is stated to be the main kingpin of the illegal business of narcotics. According to the police, the applicant has sold 260 grams of heroin/chita, which is commercial quantity. Contraband was sold to accused Aman Kumar on the demand being made by accused Sonu. In the search of his quarter, currency notes worth Rs. 2,23,000/- was found.

17. Lastly, it has been apprehended that in case, the applicant is released on bail, he may coerce the witnesses and allure them to depose in his favour and may again indulge in the same activities. The mobile phones of all the accused are stated to be sent to RFSL, Dharamshala for retrieving the data and report has been received on 11.6.2023.

18. So far as the stand of the applicant for delay in trial is concerned, according to the status report, out of 39 witnesses, 8 witnesses have been examined. One official witness has unfortunately been expired and the case is now been fixed for 11th to 14th November, 2024 for recording the evidence of PWs.

19. On all these submissions, a prayer has been made to dismiss the application.

20. Heard.

21. So far as the ground, upon which the applicant has sought his release on bail, i.e., delay in the trial, is concerned, learned counsel, appearing on behalf of the applicant, has relied upon the decision of Hon'ble Supreme Court in Criminal Appeal No.Nil of 2024 arising out of SLP(Criminal) No. 8781 of 2024 titled as Manish Sisodia Vs Directorate of Enforcement. With due respect to the law laid down by the Hon'ble Apex Court in the said case, the same, in no way, applicable to the case of the applicant, as, the applicant before the Hon'ble Apex Court was arrested in a case, which was registered under the provisions of Prevention of Corruption Act and Indian Penal Code, as well as, under Section 3 of Prevention on Money Laundering Act, whereas, in the present case, the applicant has been named as accused in a case, where, the punishment, which has been provided by the legislature in its wisdom, is not less than 10 years and which may extend upto 20 years and fine. Also, in the case before the Hon'ble Apex Court, the trial has not commenced, whereas, in the present case, trial has not only been commenced, but, eight witnesses have been examined and the learned Special Judge has now fixed the case for recording the evidence of PWs from 11th to 14th November, 2024. In such situation, this Court is fully satisfied with the pace of the trial.

22. So far as the decision of this Court in Cr.MP(M) No. 432 of 2024 titled as Inder Dev Vs State of Himachal Pradesh, which has also been relied upon, is concerned, the accused, in the said case, was arrested for possessing the contraband, which does not fall within the definition of 'commercial quantity' and as such, despite registration of the case against the accused in the said case, he was ordered to be released on bail. As such, on the basis of the said decision, no benefit could be derived by the applicant.

23. So far as the decision of a Co-ordinate Bench in Cr.MP(M) No. 189 of 2024 titled as Paridutt @ Pari Vs. State of Himachal Pradesh, as relied upon by the learned counsel for the applicant is concerned, in the said case, the accused was arrested, on the basis of the disclosure, made by the person, from whose possession, the contraband was recovered, whereas in the present case, as per the stand of the police, the police has not only recovered an amount of Rs. 2,23,000/-, but, the recovery of poppy husk weighing 9.514 kg has also been alleged by the police. As such, no relief can be given to the applicant on the basis of the said decision.

24. Admittedly, the contraband, recovered in this case, as per the story of the police, is commercial in nature and if, it has been held that the said contraband falls within the definition of 'commercial quantity', in that case, rigors of Section 37 of the NDPS Act are fully applicable, in the present case.

25. When, the rigors of Section 37 of the NDPS are applicable, in that eventuality, before releasing the accused (applicant) on bail, this Court has to satisfy the twin conditions as per Section 37(b) of the NDPS Act by holding that the accused (applicant) has not committed the offence and in case, he is ordered to be released on bail, he will not commit any offence.

26. Keeping in view the facts and circumstances narrated above, the twin conditions as per Section 37(b) of NDPS Act are not in favour of the applicant.

27. At the time of deciding the question of bail, a delicate balance between the individuality and the larger interest of the society is to be maintained.

28. Considering all these facts, the applicant is not able to make out a case for grant of bail, at this stage. Consequently, the bail application is dismissed.

29. 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.