Point of law: Rejection of bail application - it is for the accused to satisfy the court that there are reasonable grounds to believe that accused is not guilty of the offence alleged against him and he may not likely to commit - Similar offence if he is enlarge on bail - In the entire bail petition, there is no whisper in this regard.

ORDER :

1. The accused in Special Case (NDPS) No.220/2020 on the file of Principal District and Sessions Judge, Bidar has approached this Court under Section 439 of Criminal Procedure Code, 1973 (for short 'Cr.PC.') seeking grant of regular bail.

2. Brief facts which are necessary for the disposal of this petition are as under:

The Excise Sub-Inspector, Aurad Range, Aurad intercepted a lorry bearing No.HP-19/B-2187 on a credible information that opium is being transported in the said lorry on 29.12.2019 at about 3.45 p.m. in Vanamarpalli check post on the road from Degalur to Aurad. On search of the said lorry, raid party found five plastic bags containing opium of one kilogram each. They have seized the opium as the driver of the lorry pleaded ignorance and did not posses any licence to transport the same. Thereafter, they took 200 grams of opium from each of the bag for the purpose of sample and drawn a mahazar. They arrested the driver of the lorry and lodged a report with Excise Aurad-B Range Police Station. The accused/petitioner approached the District Court for grant of regular bail which was rejected by the learned Special Judge by order dated 15.12.2020.

3. The learned counsel for the petitioner/accused Sri R.S.Lagali vehemently contended that the petitioner is innocent of the offences alleged against him and he was only a driver of the lorry in question and therefore sought for grant of bail. He further contended that absolutely there is no material either in the contents of mahazar or in the statements of the persons who have participated in the raid that petitioner was in conscious possession of the seized opium bags. He also contended that materials available on record does not establish direct or indirect nexus with the seized article insofar as the accused/petitioner is concerned and thus sought for grant of bail. He also contended that there is no compliance of Section 50 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'NDPS Act' for short) and therefore, the entire raid proceedings stood vitiated as is enunciated by the Hon'ble Apex Court in catena of judgments and thus sought for grant of bail. He also contended that the petitioner being the resident of Atwan village, Amb taluk in Una district of Himachal Pradesh was no way connected with the contraband materials alleged to have been seized by the excise police and thus a false case has been foisted by the police for statistic purpose and thus sought for grant of bail. He also contended that charge sheet having been filed, the main apprehension of the prosecution that the petitioner may not cooperate with the investigation and would tamper the prosecution evidence is now not available for the prosecution and thus sought for grant of bail.

4. In support of his arguments, he relied upon the judgment of the Hon'ble Apex Court in the case of Directorate of Revenue and Another Vs. Mohammed Nisar Holia reported in (2008) 2 SCC 370 wherein it has been held as under:

"HEAD NOTE A: Narcotic Drugs and Phychotropic Substances Act, 1985 – Sections 42, 43 and Section 43 Explanation – Search in place not open to the public though situated in public place ( a room of a hotel) based on prior information – Applicability of Section 42 or Section 43 – Room in hotel if a “public place” under Section 43 Explanation – Held, whereas “hotel is a public place, a room thereof occupied by a guest may not be – Information as to offence in question received by office of Directorate of Revenue Intelligence – said information not reduced into writing by officer who received it but by PW-1 who was later on conveyed the message by the said office – High Court setting aside conviction of respondent accused on basis that statutory requirements of Section 42 had not been complied with – Sustainability – Held, in the instant case, statutory requirements under Section 42 had not been complied with – Hence, judgment of High Court does not suffer from any legal inf