Jyotsna Rewal Dua, J.

1. The petitioner seeks regular bail under Section 439 of the Code of Criminal Procedure in FIR No. 81/2020, dated 19.08.2020, registered under Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the for short) at Police Station Kumarsain, District Shimla H.P.

2. I have heard learned counsel for the parties at length and also gone through the status report as well as the record produced today by the respondent-State.

3. The prosecution case is that:-

3(i) On 19.08.2020, police personnel were on patrol duty in the areas under their jurisdiction. At about 4.25 P.M. while they were present at Bhrada on NH-5, a secret information was received by them that one Vipin Thakur (bail petitioner) was selling cannabis and opium in his Dhaba ‘Kullavi’ located at ‘Nog Kenchi’ and further that immediate raid of his dhaba can result in recovery of large quantity of cannabis and opium. The information was reliable. Provisions of Section 42(2) of the NDPS Act were complied with. The raiding party reached near Kullavi Dhaba at Nog Kenchi. Smt Alpana Prashar, Pradhan and Sh. Sudheer, Ward Member Gram Panchayat Deeb, were associated with the raiding party as independent witnesses. Petitioner was present in his dhaba. Search of the dhaba was carried out in accordance with law after observing all codal formalities. During the search, from behind the table counter, two separate packets containing cannabis weighing 834 grams and opium weighing 574 grams were recovered. Recovery of the contraband led to registration of the FIR in question. The petitioner was arrested on 20.08.2020 at about 2.20 A.M. and since then he is in custody.

3(ii) During investigation, the petitioner statedly disclosed that he was engaged in business of selling cannabis and opium for past about two years and that he himself was also a drug addict. He further stated that the contraband recovered from his dhaba was purchased by him for Rs.1,20,000/- on 08.08.2020 from one Sandeep. The efforts of investigation agency to trace Sandeep were not fruitful. People residing at the address given by the petitioner allegedly informed the investigating agency that no person with the name and description of Sandeep resided in that area. Petitioner also statedly disclosed that the contraband was meant to be sold to the truck drivers and his old & well known customers.

3(iii) Financial investigation was also carried out in terms of the provisions of the NDPS Act. During financial investigation, it came out that the petitioner presently aged about 28 years, had started running his dhaba on rent from September 2018 at Nog Kenchi in District Shimla. He had no other source of income. No land was in his name. Petitioner was also not an income tax payee. He was married and his wife Smt. Radha Devi was a housewife and resided with her husband/petitioner at Nog Kenchi. The couple has a minor daughter. Parents are residents of Ani, District Kullu. Sh. Moti Ram-father of the petitioner’s has 7 bighas of land at Ani, District Kullu and is working there as Masson. Petitioner’s mother-Smt. Rambha Devi is a housewife and resides with her husband/father of the petitioner at Anni in District Kullu. Petitioner’s younger brother-Sh. Sanjeev Kumar resides in village Nagota District Kullu, where he runs a daily need shop. He is also married and his wife Smt. Neelam Kumari, is also a housewife.

Financial investigation also revealed that the petitioner Vipin Thakur and his wife Radha Devi have their separate bank accounts in Punjab National Bank Kumarsain, District Shimla. As per the bank statements, transaction of more than Rs.35 lacs during the last two years was carried out in these two bank accounts. The financial transactions were not proportionate to the petitioner’s known source of income. Last amount in petitioner’s bank in account was Rs.5,62,986/- and Rs.5,04,709/-in bank account of his wife. The huge transactions of more than Rs.35 lacs in the last two years led the investigating agency to believe that the amount had been acquired by the petitioner through illegal trafficking of cannabis and opium. Therefore on 16.11.2020, in exercise of powers under Section 68(E) read with Section 68F of the NDPS Act, an order of freezing the above two bank accounts was passed. As per status report, the order thereafter has been confirmed by the Competent Authority and Administrator under Section 68F(2) of the NDPS Act.

4. Learned counsel for the petitioner contended that the petitioner is innocent and has been falsely implicated in the FIR in question. Learned counsel also submitted that the quantity of contraband alleged to have been recovered from petitioner’s dhaba falls in the intermediate category. The petitioner is behind the bars w.e.f. 20.08.2020 and therefore, now deserves to be released from confinement. In respect of the transactions in the bank accounts of petitioner and that of his wife, learned counsel submitted that the petitioner’s mother-Smt. Rambha Devi has been working as a commission agent dealing with seasonal vegetables as well as horticulture produce for a long time. The amount received by her on account of her pursuits carried out as a commission agent was being credited by her into the petitioner’s bank account. Therefore, he tried to justify the financial transactions in the bank accounts of petitioner and that of his wife.

Learned Additional Advocate General vehemently opposed the release of bail petitioner. He contended that apart from opium weighing 574 grams, cannabis weighing 834 grams was also recovered from the petitioner’s dhaba. The quantity of recovered cannabis is nearer to the commercial quantity notified under the NDPS Act. Looking into the bank account statements of the petitioner and his wife, learned Additional Advocate General submitted that it can be fairly concluded that the amount was acquired by the petitioner by illegal trafficking of cannabis and opium.

5. What comes from the record at this stage is that the petitioner was running the dhaba in question in an interior area of District Shimla. He started this dhaba on rent in September 2018. Neither the petitioner is an income tax payee nor has any land in his name. There is no other source of income for the petitioner. His wife is a housewife. His parents reside separately in District Kullu. His younger brother reside separately with his own family in District Kullu. Transactions of more than Rs.35 lacs in last two years in the bank accounts of petitioner and his wife certainly raise suspicion about the source of this income. At present, it cannot be said that transaction of such a large amount in the bank accounts of petitioner and his wife was proportionate to their current source of income. Mother of the petitioner resides separately with her husband at Anni in District Kullu. Both parents of the petitioner have their own separate bank accounts at Anni District Kullu. These accounts are also active. At this juncture, it cannot be said that petitioner’s mother would not only be earning such a huge amount by working as a commission agent but also depositing it in the bank account of the petitioner and her daughter-in-law. Younger brother of the petitioner resides at village Nagota in District Kullu, having his own separate bank account there. Besides 574 grams of intermediate quantity of opium, intermediate quantity of cannabis was also recovered from petitioner’s dhaba. However, 834 grams of recovered cannabis is nearer to 1000 grams notified as commerical quantity under the NDPS Act. Section 37 of the NDPS Act is not applicable in the case in view of the quantity recovered. However, considering quantity of cannabis recovered from him, which is nearer to the notified commercial quantity and also looking into the bank accounts of the petitioner and his wife prima facie impression about petitioner being a drug peddler cannot be ruled out at this stage. This coupled with the bank account statements of the petitioner & his wife, the financial investigation carried out in the matter so far, does suggest at present that the petitioner could be a drug peddler. On release, he may indulge in the same offence again, which affects the society at large. For all the above reasons, the present petition for regular bail is dismissed at this stage. It is clarified that the observations made above are only confined to the disposal of this petition. Petitioner shall be at liberty to file a fresh petition, at an appropriate stage, in accordance with law.