The main legal point established in the judgment is the application of the standard of 'reasonable grounds to believe' and the stringent parameters for the grant of bail under the NDPS Act, particularly in cases involving a commercial quantity of contraband.

JUDGMENT

Rajnish Bhatnagar, J. - The present bail application has been filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in Crime No. VIII/50/DZU/2019 registered under Section 8 (C), 21 (C) of the NDPS Act., pending before the Court of Ld. Special Judge, NDPS, Patiala House Courts, New Delhi.

2. Briefly stated, the facts of the present case are that on the basis of a secret information received on 26.12.2019, a raid was conducted on 27.12.2019 in the presence of independent witnesses at House No. A-25, First Floor, Gali No 7, Vipin Garden, Uttam Nagar, New Delhi where petitioner Emeka Charles Omuka was living. Upon search of the said house, 270 grams of Heroin was recovered from the inner-side of window AC fixed above the main door.

3. I have heard the Ld. counsel for the petitioner, Ld. Sr. Standing Counsel for the respondent (NCB), perused the Status Report and also perused the records of this case.

4. It is submitted by the Ld. counsel for the petitioner that the contraband recovered is marginally above the commercial quantity which indicates that the same is intentionally exaggerated to put embargo of Section 37 NDPS Act. He further submitted that in the case of marginally above commercial quantity bails have been granted by various High Courts in India and he relied upon :

(a) CRM-M-37253 of 2016 (Fetstus Ugochukwu Vs. State of Punjab) decided on 07.12.2016.

(b) CRM-M-40876-2017 (Vishal Shah Vs. State of Punjab) decided on 04.04.2018

(c) CRM-M-44873-2019 decided on 24.01.2020 in case titled as Kala Vs. State of Punjab and CRM-M 17459-2018 decided on 13.09.2018 in case titled as Harjeet Singh alias Jajj Vs. State of Punjab.

(d) CRM-M-53641-2019 decided on 13.08.2020 in case titled as Nirmal Singh @ Bittu Vs. State of Punjab.

5. It is further submitted by the Ld. counsel for the petitioner that the petitioner has already retracted his statement forcibly got recorded from him under Section 67 of the NDPS Act, therefore, the credibility of the same is doubtful. He further submitted that the petitioner is in J.C. since 27.12.2019 and there is no chance of absconding away if he is released on bail. He further submitted that the petitioner had no concern or connection with the alleged recovery of contraband material as the same was admittedly not recovered from the petitioner/accused. He further submitted that there is no apprehension of petitioner being tempering any evidence of threatening any witnesses.

6. On the other hand, it is submitted by the Ld. Sr. Standing counsel for the respondent (NCB) that the contraband recovered from the house of petitioner i.e. 270 gm. of heroin which is a commercial quantity, therefore embargo of Section 37 of the NDPS Act applies in the case of present petitioner. He further submitted that the petitioner is a foreign national and there is every possibility of his evading the trial, in case he is released on bail. He further submitted that the charge is yet to be framed against the petitioner and the public witnesses are yet to be examined. He prays for the dismissal of the bail application.

7. In the instant case, the total recovered Heroin is 270 gm. which is a commercial quantity so rigors of Section 37 of NDPS Act definitely applies in this case.

8. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are:

(i) The Prosecutor must be given an opportunity to oppose the application for bail; and

(ii) There must exist 'reasonable grounds to believe' that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.

9. The standard prescribed for the grant of bail is 'reasonable ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two-judge Bench of Supreme Court in Union of India Vs. Shiv Shanker Kesari (2007) 7 SCC 798 held that:

"7. The expressio