The compliance of provisions under Section 50 of NDPS Act, the recovered quantity of contraband, and the application of Section 37 of NDPS Act are crucial in determining bail applications under the NDPS Act.

JUDGMENT

Suresh Kumar Kait, J. - The hearing has been conducted through video conferencing.

Crl.M(B)555/2021

1. The present application for bail has been preferred by the petitioner praying for his release due to Covid 19 pandemic and also since his application for regular bail is pending since the year 2018.

2. Learned counsel for petitioner points out that besides the afore-noted prayer, the ground on which petitioner has sought interim bail is that son of petitioner's elder brother, who is a physically challenged person, was admitted in ICU due to brain haemorrhage and his brother was unable to attend him in hospital, as his wife had given birth to their third child. Learned counsel submitted that parents of petitioner are old and aged and could not help them and in such circumstances, therefore, petitioner had sought interim bail. However, son of brother of petitioner could not survive.

3. Learned counsel insisted that in above critical circumstances, petitioner could not stand by his family and, therefore, his application for interim bail be allowed, keeping in view that his application for bail is pending consideration since 2018.

4. Learned Additional Public Prosecutor for State has opposed the present application by submitting that since last rites of son of petitioner's brother are over and the offences alleged are serious, this application deserves to be dismissed.

5. After hearing learned counsel appearing from both the sides, this Court finds that infact the relief claimed in this application no more survives for consideration, however, keeping in mind that the bail application of petitioner is pending since the year 2018, with the consent of learned counsel for both the sides, the main petition is heard today itself.

6. The application is disposed of.

BAIL APPLN. 2641/2018

7. By virtue of present petition, petitioner is seeking bail in FIR No. 124/2017, registered at Crime Branch for the offences under Sections 21/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

8. The brief facts of the present case are that on 27.07.2017, SI Vinod Kumar, Narcotic Cell received a secret information that two persons, namely Nabi Alam, i.e. petitioner herein and Mohd. Aakil are indulged in the supply of heroin in Delhi, which they get from Badaiyu/Bareli and they would be supplying a big consignment near Red Light of Chanakya Place, Uttam Nagar, Delhi. Accordingly, a raiding team was constituted and accused were apprehended. Notice under Section 50 of NDPS Act was served upon both of them and they were made aware of their legal rights of being searched before a Gazetted Officer or Magistrate.

9. Upon personal search, heroin weighing 250 gms. was recovered from the possession of petitioner-Nabi Alam and 50 gms. of heroin was recovered from Mohd. Aakil. Both of them were taken into custody on the same day i.e. 27.07.2017 and FIR in question was registered against them. Upon completion of investigation, charge sheet was filed on 25.10.2017 before the learned trial court and the trial commenced. The learned trial court dismissed petitioner's bail application vide order dated 13.07.2018, while observing as under:-

"In the considered opinion of this Court, there are prima facie serious allegations against this accused at this stage qua recovery of commercial quantity of contraband from his possession. Since quantity of contraband recovered from possession of this accused is commercial, there is a bar of section 37 of NDPS Act for granting bail to this accused. He may flee from justice and may adversely affect the prosecution case, if granted bail at this stage. For these reasons, I do not find any merits in this application and it is hereby rejected."

10. Petitioner - Nabi Alam approached this Court for bail primarily on the ground that necessary compliance of provisions under Section 50 of NDPS Act was not made before alleged recovery of heroin was made at his instance, and therefore, trial against him is vitiated.

11. At the