Vivek Puri, J.

1. Petitioner – Manjinder Singh is seeking regular bail in the case bearing FIR No. 21, dated 12.12.2018, registered under Sections 21/25/29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), Section 25 of Arms Act and Section 307 of the Indian Penal Code, at Police Station Special Operation Cell, Amritsar.

2. Briefly, the version as putforth by the prosecution is to the effect that on 12.12.2018 a secret information was received to the effect that the petitioner along with the co-accused Basant Singh were to come on a motorcycle bearing registration no. PB02DW8533, for delivering heroin, arms and ammunition. Accordingly, the naka was raised and on seeing the motorcycle, the occupants were signaled to stop. The motorcycle was being driven by the petitioner and the coaccused Basant Singh was sitting on the pillion. The co-accused fired from the pistol, however, the occupants of the motorcycle were apprehended. Basant Singh co-accused was sitting on the pillion and carrying a backpack (pithu bag) from which 4 kgs and 230 grams heroin was recovered.

3. Learned counsel for the petitioner contends that the petitioner is in custody for a period of more than 3 years and 3 months, not involved in any other case and no recovery has been effected from his person. It has been further argued that the petitioner has not been substantially charged under Section 307 of the Indian Penal Code, 21 of NDPS Act and 25 & 27 of the Arms Act. However, he has been charged only with regard to the commission of offence under Section 29 of the NDPS Act. When the petitioner and the co-accused were apprehended, they were given joint option, but the recovery memo with regard to the heroin only depicts the name of Basant Singh co-accused. When the police party had signaled the occupants of the motorcycle to stop, the petitioner who was driving the motorcycle immediately stopped. He neither fired upon the police party nor tried to escape from the spot. Moreover, a mobile phone and Rs. 200/- were recovered during the course of the search of the petitioner. Even the petitioner is not the owner of the motorcycle. The same is owned by Harwinder Singh, a relative of co-accused Basant Singh, who had taken the motorcycle from him. Learned counsel for the petitioner has placed reliance upon decision of this Court rendered in CRM-M-22034 of 2017, 22034 of 2017, titled as Harinder Singh @ Harinder Singh @ Happy Vs. Central Bureau of Narcotics, decided on 29.05.2018 and CRM-M-38006-2018, titled as Karamjit Singh alias Pammi Vs. State of Punjab, decided on 01.10.2018 to argue that as the petitioner has been charged under Section 29 of the NDPS Act, the stringent provisions of Section 37 of the NDPS Act are not attracted in the instant case.

4. On the contrary, the learned State counsel has opposed the bail application on the score that quantity of contraband recovered in the instant case falls in the category of commercial quantity. The petitioner and the coaccused were travelling together and 4 kgs and 230 grams of heroin has been recovered. They were indulging in transborder smuggling and have even fired upon the police party.

5. On appreciating the rival submissions, it emerges that the recovery of the contraband has been effected from the bag being carried by the co-accused. Neither any contraband has been recovered from the petitioner nor he fired upon the police party. Even no firearm has been recovered from him. The petitioner is not the owner of the motorcycle and the recovery memo pertaining to the contraband only indicates the name of Basant Singh co-accused. Moreover, it is a case of no injury, The petitioner has not been substantially charged with regard to the offence under Section 21 of NDPS Act, 307 of Indian Penal Code and 25 and 27 of the Arms Act. The charge framed against him is with regard to the offence under Section 29 of the NDPS Act. The involvement of the petitioner in the conspiracy will be debatable and moot point during the course of trial.

6. On a query by the Court with regard to the involvement of the petitioner in transborder smuggling of narcotics, the learned State counsel has pointed out that there is no mobile communication and other evidence with respect to the connections with Pakistani smugglers except the disclosure of the petitioner and the coaccused during their interrogation.

7. It shall not be out of place to mention here that in a decision rendered by the Hon’ble Supreme Court in Criminal Appeal No. 668 of 2020 titled as “Amit Singh Moni Vs. State of Himachal “Amit Singh Moni Vs. State of Himachal Pradesh, decided on 12.10.2020, decided on 12.10.2020, the bail has been granted to the accused after he had undergone incarceration for a period of about 2 years and 7 months and particularly when the trial was not progressing. Even in the instant case, the petitioner is in custody for a period of more than 3 years and 3 months, not involved in any other case and furthermore, only 5, out of 23 witnesses have been examined so far.

8. In these set of circumstances, the rigors of Section 37 of the NDPS Act can be relaxed and keeping in view the entire facts and circumstances emerging in the instant case, sufficient mitigating circumstances are made out to extend the concession of bail to the petitioner.

9. For the aforesaid reasons, it is ordered that the petitioner be released on regular bail subject to his furnishing requisite bail bonds/surety bonds to the satisfaction of the concerned trial Court/Chief Judicial Magistrate/Duty Magistrate.

10. However, the aforesaid observations have been circumscribed only for the purpose of disposal of the present bail application and shall not be construed as an expression of opinion on the merits of the case.

11. Instant petition is allowed.