IMPORTANT POINTS
(1) 510 gms of “Charas” – No Recovery of contraband – The quantity of contraband involved in the case is intermediate, hence the rigors of Section 37 of the NDPS Act are not applicable.
(2) SIM card in physical possession by Police – Arrest made on apprehension – link can be proved by the call detail records and also the records of consumer application form maintained by the mobile service provider – Thus No purpose is going to be served by taking the mobile set or SIM Card in physical possession by the police.
(3) Curtaining liberty – pre-arrest bail – The respondent has failed to make out any case for custodial interrogation of the petitioner – That being so, no fruitful purpose shall be served by curtailing the liberty of petitioner by refusing him pre-arrest bail

JUDGMENT

Satyen Vaidya, J.—Petitioner is an accused in case registered vide FIR No. 52 of 2022, dated 7.3.2022, registered at Police Station Sadar, Mandi, District Mandi, H.P. under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985, (for short NDPS Act).

2. Police case is that on 7.3.2022 the accused Aasif Abdul Kayub Khan was apprehended by the police with 510 grams of Charas in his possession. The said accused was arrested and during investigation, he provided a mobile number and also disclosed some person named Vikram being instrumental in providing him the Charas for Rs. 38,000/-. As per the case of police, the petitioner was operating in the name of Vikram and, therefore, the petitioner was arrayed as an accused under Section 29 of the NDPS Act.

3. Petitioner has sought pre-arrest bail in the aforesaid case on the grounds that he is innocent and has been falsely implicated. There is no legal evidence available with the police to connect the petitioner with alleged crime. No recovery was effected from the petitioner. The petitioner had neither abetted the crime nor had conspired with main accused to attract the provisions of Section 29 of the NDPS Act. Petitioner has joined the investigation. Petitioner is permanent resident of Village and Post Office, Malana, Tehsil Bhunter, District Kullu, H.P. Petitioner has undertaken to abide by the conditions as may be imposed.

4. The bail application has been opposed on the ground that though the petitioner has joined investigation but has not handed over the mobile and SIM Card used by him during transaction with main accused. As per respondent, the custody of petitioner was required as the aforesaid mobile phone has to be recovered alongwith SIM Card. It is also mentioned in the status report filed by the respondent that petitioner states to have destroyed the mobile phone and SIM Card out of fear.

5. I have heard learned counsel for the petitioner and learned Additional Advocate General for the State and also have gone through the status report.

6. The quantity of contraband involved in the case is intermediate, hence the rigors of Section 37 of the NDPS Act are not applicable. Admittedly, no recovery was made from the petitioner. It is on the basis of some call detail records of mobile phone that the petitioner is being linked with the crime. Such link can be proved by the call detail records and also the records of consumer application form maintained by the mobile service provider. No purpose is going to be served by taking the mobile set or SIM Card in physical possession by the police.

7. This Court has been informed that the main accused has already been released on bail in pursuance to order dated 21.4.2022 passed by learned Special Judge, Mandi in bail application No. 48 of 2022. The respondent has failed to make out any case for custodial interrogation of the petitioner. That being so, no fruitful purpose shall be served by curtailing the liberty of petitioner by refusing him pre-arrest bail.

8. Petitioner is not stated to be involved in any other case under the NDPS Act. It is alleged that petitioner was an accused in FIR No. 203 of 2010 dated 4.9.2010 under Sections 143, 341, 451, 504 and 506 IPC, registered at Police Station, Manali in which petitioner was discharged by learned Chief Judicial Magistrate, Lahaul & Spiti at Kullu, H.P. on 20.03.2014. Petitioner is permanent resident of Village and Post Office, Malana, Tehsil Bhunter, District Kullu, H.P. and there is no apprehension of petitioner fleeing from the course of justice. It is not the case of respondent that in case of release of petitioner on bail, further investigation, if any, and/or trial of the case will be effected adversely.

9. In the peculiar facts and circumstances of the case, the application is allowed and the petitioner is ordered to be released on bail, in the event of his arrest, in case FIR No. 52 of 2022, dated 7.3.2022, registered at Police Station Sadar,