Point of Law : Before the Court grants bail to an accused allegedly involved in an offence under the NDPS Act, the Court required to be satisfied that the accused is not guilty of the offence and that he will not involve himself in an offence under the NDPS Act while on bail.

JUDGMENT :

1. By this petition, the petitioner seeks bail in Sessions Case No. 335/2019 under Sections 22 and 29 of the NDPS Act instituted on the complaint of the respondent.

2. Learned counsel for the petitioner contends that the petitioner has been falsely implicated in the present case. Co-accused Mohan Kumar and Birpal have already been granted regular bail by this Court vide orders dated 23rd March 2020 and 6th August 2020 respectively, hence, the petitioner is also entitled to be released on bail. While granting bail to Mohan Kumar and Birpal, this Court noted that there is no recovery from the said accused and the only evidence against them is the statement under Section 67 of the NDPS Act. While granting bail to Mohan Kumar, this Court did not rely upon the prosecution version that the parcel originated from Agra in view of the consignment slip marked as Annexure-5 on page 70 of the charge sheet which showed the address of the courier company i.e. Apex Courier at Mahipalpur, Delhi. Further, there is no mention of any consignment slip in the seizure memo or the panchnama in the main charge sheet. The Court also noted the difference in the colour and weight of the samples taken and sent to the laboratory. The alleged consignment Note No. 20235315 was generated in Delhi and not Agra. The total weight of the parcel was 25.460 kg and the weight of the contraband was 21.960 kg. By no stretch of imagination, the packing material can be equivalent to 3.5 kg. No calls or chats have been found between the petitioner or the co-accused or any other person. Nothing incriminating was recovered from the premises of M/s. Golden Belly Farms, Uttar Pradesh. Statement of the petitioner recorded under Section 67 of the NDPS Act was not voluntary as the same was taken after continuous custody with NCB officials and had been retracted at the earliest opportunity and in any case, cannot be relied upon in view of the decision of the Hon’ble Supreme Court reported as (2021) 4 SCC 1 Tofan Singh Vs. State of Tamil Nadu.

3. It is further contended that the prosecution has surreptitiously chosen to make Satpal who was working in ‘Welcome Courier’ as a witness and not an accused even though the money was substantially paid by Satpal to co-accused Brij Bhushan Bansal and he was in contact with the said accused and both of them knew each other for the last 4-5 years. Further, even as per Satpal, the main accused Brij Bhushan Bansal indulged in similar transactions earlier also. There are material differences in the statements of the various accused and witnesses recorded under Section 67 of the NDPS Act which go to the root of the matter. The petitioner has been in custody since 22nd January 2019 and the trial is likely to take some time. There is no recovery of contraband nor any money trail has been found from the present petitioner. The petitioner has a previous enmity with the respondent as he was falsely implicated earlier also and in one case, he has been acquitted and in another case, he is on bail. The petitioner is 75 years old and suffering from various life threatening diseases due to which, the petitioner was granted interim bail and he surrendered on 20th March 2021 which concession he did not misuse. The petitioner be thus released on bail.

4. Learned Special P.P. for the NCB states that the petitioner is involved in the commission of offence relating to commercial quantity of 5000 tablets of Alprazolam weighing 1 kg and 50000/- tablets of Zolpidem weighing 12.500 kg which are psychotropic substances as per the Schedule of NDPS Act and in view of the embargo of Section 37 of the NDPS Act, the petitioner be not released on bail as he has been earlier involved in two NDPS Act cases with recovery of commercial quantity of contraband. The chats and Whatsapp messages exchanged between accused Brij Bhushan Bansal and Birpal clearly shows the larger conspiracy in which illicit trafficking of commercial quantity of contraband was committed by all