ORDER

Heard the learned Advocate for the petitioner and the learned A.P.P. for the State.

2. The petitioner seeks bail in connection with Dinara (Bhanas O.P.) P. S. Case No. 267 of 2020 corresponding to N.D.P.S. Case No.11 of 2020, instituted for the offences under Sections 8/20(b)(ii)(c)/22/29 of the N.D.P.S. Act.

3. The learned counsel for the petitioner submits that from perusal of the allegation as alleged in the F.I.R., it would manifest that the S.H.O., Bhanas O.P. alleges that on 03.09.2020 at about 12:30 hrs he got secret information that one white colour Maruti Car bearing Registration No. KA05AG0727 is parked near a petrol pump in which the smugglers are sitting with ganja and charas, further that information was given to the superior officers and a police team was constituted, investigation kit was taken and further weighing machine was taken from the sweet shop of one Saroj Gupta. It is further alleged that police proceeded at 12:45 pm from the police station along with the Circle Officer and when the team reached near Bariyarpur Petrol Pump, they saw a white colour Maruti car. It is alleged that on seeing the police the accused persons tried to flee with the car but the car was chased and the accused along with the car were apprehended at village Katiyara at about 1:15 pm. It is alleged that two persons in the age group of 20-25 years were sitting in the car and were nervous and further they disclosed their name as Rambabu Yadav and Monu Kumar. It is further alleged that in presence of two independent witnesses, both the accused persons were searched and in course of search from Rambabu Yadav a blue colour Vivo mobile and Rs. 26,900/- was recovered and from Monu Kumar, one Samsung Android mobile was recovered. Further, from the dickey of the car, one blue colour bag wrapped in a plastic containing ganja was recovered and beneath the middle seat of the car, two white colour plastic were recovered in which 23 and 24 pieces of roll was concealed containing charas like contraband. It is further alleged that the contraband seized was weighed and the ganja was found to be 4.500 kg and the charas like narcotic was found to be 4.700 kg, accordingly the present F.I.R. was instituted.

4. Learned counsel for the petitioner submits that from perusal of the allegation as alleged in the F.I.R. it would manifest that as far as recovered ganja is concerned, the same is less than the commercial quantity and a little more than small quantity but as far as charas is concerned, the same is alleged to be of commercial quantity. Learned counsel for the petitioner further submits that F.I.R. itself discloses that the authority who seized the alleged contraband has not alleged with certainty that the recovered contraband was charas rather he alleges that the recovered narcotic was charas like substance. Learned counsel further submits that since the authority seizing the alleged contraband was himself not sure whether it was charas or charas like substance then the same had to be certified by an expert body i.e., by F.S.L. but in the present case the I.O. submitted charge-sheet in absence of F.S.L. Learned counsel further submits that even ganja is alleged to be ganja by the Investigating Officer the same also has not been certified by F.S.L. that the alleged seized material was ganja or not.

5. Learned counsel further submits that N.D.P.S. act is a stringent act and the punishment incorporated in the Act ranges from one year to capital punishment. The learned counsel further submits that liberty of a person, even if he is an accused, cannot be imperiled in the manner it has been done in the present case, that is, the person who investigated the case himself certified that the alleged contraband was ganja and charas and thus became a judge of his own.

6. In view of the submissions made by the learned counsel for the petitioner, this Court on 16.11.2021 had directed the Superintendent of Police, Rohtas to file a counter affidavit clearly statin