The main legal point established in the judgment is the stringent conditions for granting bail under Section 37 of the NDPS act, emphasizing the legislative intent to prevent the devastating impact of drug offenses on society.

JUDGMENT

Chandra Dhari Singh, J. - The present petition has been preferred under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as the 'Code') for seeking regular bail in FIR bearing No. 141/2021 under Section 22 of the Narcotic Drugs and Psychotropic Substances act, 1985 (hereinafter, referred to as the 'NDPS act') registered at PS - Crime Branch, Delhi.

2. The brief facts of the case as per the prosecution are that on 24th July 2021, an information was received in SOS-I/Crime Branch, that a person named alok Saxena would be supplying smack in Delhi. The information was shared with senior officers and necessary permission under the provisions of the statute was obtained. The applicant was apprehended by the Police and the contraband i.e. smack was recovered in two packets of a total quantity of 2010 gms. accordingly, FIR bearing No. 141/2021 under Sections 21/25 of the NDPS act at Police Station Crime Branch, Delhi was registered against the applicant. after completion of the investigation, charge sheet was filed for commission of offence under Section 22 of the NDPS act against the applicant and Sections 21/25 of NDPS act was dropped on the basis of FSL report.

3. Learned counsel appearing on behalf of the applicant submitted that the applicant has been falsely implicated in the instant case. It is submitted that the investigation has been completed and a chargesheet has already been filed. It is also submitted that the applicant has been languishing in jail since 24th July 2021 and no useful purpose would be served by keeping the accused/applicant in jail. It is further submitted that the applicant has clean antecedents and has not been involved in any criminal activities of any manner in the past.

4. Learned counsel appearing on behalf of the applicant submitted that the entire story of the prosecution is unreliable, unworthy and is based on concocted facts. It is submitted that as per the FSL report, the material allegedly recovered from the possession of the accused/applicant has been identified as (i) acetylcodeine, (ii)Tramadol and (iii) Dextromethorphan.

5. Learned counsel appearing on behalf of the applicant submitted that the result of the testing kit is different from that of the FSL report, and these facts create serious doubts in the prosecution's version. It is a well settled law that the benefit of doubt goes in the favour of the accused/applicant.

6. It is further submitted that the material allegedly recovered from the possession of the accused/applicant does not come under the purview of the NDPS act and therefore, no offence whatsoever, under the NDPS act is made out. It is also submitted that the applicant is having a valid licence in his favour issued by the Drugs Control Department, Government of NCT of Delhi and is authorized to sell, stock, exhibit, offer for sale, or distribute Tramadol. Learned counsel appearing on behalf of applicant submitted that the mandatory provisions under the NDPS act especially under Section 50 have not been complied with. It is also submitted that since there is no material on record against the applicant, therefore, there is no chance for conviction for offence punishable under Section 22 of the NDPS act.

7. It is further submitted that acetylcodeine is one of the major impurities present in illicitly manufactured Heroin meaning, thereby, unless Heroin is present along with acetylcodeine, simple recovery of acetylcodeine has no relevance for the purpose of arriving to conclusion, a case under NDPS act is made out against the applicant. as per the FSL report, Dextromethorphan is absent.

8. It is submitted that in the case of State of Uttaranchal vs. Rajesh Kumar Gupta 2006 (3) JCC (Narcotics) 178, the Hon'ble Supreme Court has held that the provisions of the NDPS act were prima facie not applicable in view of the fact that the drug in question in the said case was not listed in the First Schedule appended to the NDPS Rules,