1. Petitioner is an accused in case registered vide FIR No. 107 of 2022, dated 24.03.2022, registered at Police Station, Kullu, District Kullu, H.P. under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and Section 14 of the Foreigners Act. Petitioner is in custody since 31.03.2022.
2. Brief facts for adjudication of the petition are that on 24.3.2022, Special Investigation Unit of Police Station, Kullu, on secret information, searched the rented accommodation of one Ajay Maghar and found the said Ajay Maghar and one Pasang, present in the premises. 11 grams of heroin was recovered on the search of the premises. Both Ajay Maghar and Pasang were arrested after registration of case. During investigation, accused Ajay Maghar disclosed that the contraband had been brought by them from Delhi from some Nizerian citizen for their own consumption. Mobile No.7518745921 was found saved in the mobile of accused Ajay Maghar in the name of SAM and repeated whatsapp chat was found exchanged with the said mobile number. The police party visited Delhi alongwith accused Ajay Maghar on 30.3.2022. On 31.3.2022 the petitioner alongwith another Nizerian citizen named Tochukwu were tracked and nabbed. The co-accused of the petitioner threw a packet on the road. On checking the packet so thrown by co-accused Tochukwu, 23 grams heroin was recovered. The petitioner and one Tochukwu were also arrested in the case and are in custody since then.
3. Petitioner has made a prayer for grant of bail on the grounds that he is innocent and is not involved in any offence. It is averred on behalf of the petitioner that no material on record is there to prima-facie show the involvement of petitioner in any offence of abetment or conspiracy save and except the bald statements of the coaccused. The investigation is stated to be complete. Petitioner has undertaken to abide by all the terms and conditions as may be imposed against him.
4. Respondent has submitted status report. The accused Ajay Maghar and Pasang are stated to be resident of Nepal and petitioner and other accused named Tochukwu are stated to be resident of Nizeria. After completion of investigation, challan is stated to have been filed in the Court on 26.5.2022.
5. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
6. The quantity of heroin involved in the case is intermediate and, as such, rigors of Section 37 of the NDPS Act will not be applicable.
7. The petitioner has been involved in the case on the basis of confessional statement made by co-accused, which is not admissible in law. Except such statement, the implication of petitioner is being sought on the basis of alleged recovery of 23 grams of heroin from his co-accused at Delhi. The contraband was recovered from co-accused Ajay Maghar and Pasang on 24.3.2022. The alleged recovery of 23 grams of heroin from co-accused of petitioner was made at Delhi on 31.3.2022. It is highly doubtful that both the recoveries can be said to be part of the same offence or transaction. The recovery as allegedly effected from the co-accused of petitioner at Delhi would prima-facie be an offence cognizable at Delhi.
8. Though at the time of deciding bail petition, this Court will not minutely scan the material collected by the Investigating Agency, however, the same can be looked into only for the purposes of assessing seriousness and gravity of allegations against the bail petitioner. The observations made hereinabove are only for such purpose.
9. The co-accused Ajay Maghar and Pasang are already on bail. The allegations against the petitioner are yet to be proved. Pre-trial incarceration cannot be ordered as a matter of rule. No fruitful purpose shall be served by keeping the petitioner in custody.
10. It has been submitted on behalf of the respondent that petitioner is a foreign national and he should not be released on bail. The co-accused Ajay Maghar and Pasang are also foreign nationals and are already on bail. For the purpose of procuring the presence of bail petitioner during investigation, he can be put to appropriate terms. It is not the case where the petitioner may be able to influence the prosecution witnesses in case of grant of bail.
11. In the peculiar facts and circumstances of the case, the application is allowed and the petitioner is ordered to be released on bail in case FIR No. No. 107 of 2022, dated 24.03.2022, registered at Police Station, Kullu, District Kullu, H.P. under Sections 21 and 29 of the NDPS Act and Section 14 of the Foreigners Act, on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One lac) with one surety in the like amount, who necessarily should have immoveable property in India, to the satisfaction of learned trial Court. This order is subject to following conditions: -
i) Petitioner shall not leave India. He shall surrender his passport before learned trial Court, if not already submitted before any other authority and the release of his passport will be subject to outcome of the trial.
ii) Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with prosecution evidence.
iii) Petitioner shall provide his mobile number, if any, at Police Station Kullu.
iv) Petitioner shall not delay the trial of the case and shall regularly attend the hearings, except in circumstances beyond his control.
v) Upon his re-indulging in criminal activities, it shall be open to the respondent, to move this Court for cancellation of bail.
12. Any observation made in this order shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
