The main legal point established in the judgment is the strict application of Section 37 of the NDPS Act, making bail the exception in cases involving the recovery of commercial quantity of narcotic substances and emphasizing the twin conditions that need to be satisfied before granting bail.

JUDGMENT

1. By way of the present application under Section 439 of Code of Criminal Procedure, 1973, the petitioner seeks grant of regular bail in case FIR bearing no.111/2016 registered under Sections 20/25/29 of the NDPS Act, 1985 at Police Station Crime Branch, Delhi.

2. Briefly stated, as per the case of prosecution, on receipt of secret information on 05.07.2016, SI Jai Prakash was informed that one Daya Shankar Rai @ Shankar Yadav, who is residing in Molarband Extention, Badarpur Border, Delhi and is a permanent resident of Bihar, procures ganja from Odisha via Moradabad, UP, and traffics the same along with his associate namely Anuj, who is a taxi driver. He was also informed that they will traffic ganja from Moradabad, UP in taxi of Anuj having Regn. No. DL-1YE-6453, at around 8:45 AM to 9:15 AM, near Railway track Bhairo Marg, Pragati Maidan, Delhi. The said information was reduced into writing, a team was deployed near the place of information, and at the instance of the secret informer, two persons namely Anuj Kumar Upadhyay, aged about 30 years, and Daya Shankar, aged about 42 years were apprehended with Taxi no DL-1YE 6453, at about 6.00AM. A formal search of both the accused persons as well as their Taxi was conducted and 80 Kilograms ganja was recovered from the car, which was kept in four plastic gunny bags, each plastic bag containing 20 kilogram of ganja. Out of these four bags, three were in the boot space of the car and one bag was lying on the back seat of the car, held by co-accused Daya Shankar. Samples were drawn, and the contraband along with the samples was seized separately. Pursuant to this, the present FIR was registered. Samples of the contraband were sent to FSL, Rohini, Delhi and the report received was positive. On interrogation, co-accused Daya Shankar disclosed that he had visited the jungle in Kotpad, Odisha and had booked the ganja from one Nar Singh, who had delivered the same in Moradabad, UP through one Harun. Thereafter, he along with accused/applicant Anuj had gone to Moradabad in applicant's taxi for carrying ganja to Delhi. He also disclosed that he had brought ganja from Moradabad several times. Co-accused Harun, earlier declared as Proclaimed Offender, was arrested later on.

3. Learned counsel for the accused/applicant states that the applicant has been in judicial custody for more than six years. It is further argued that petitioner was not in 'conscious possession' of ganja and he was merely a driver of the taxi and thus, had no role to play in possession of contraband or any other offence under NDPS Act. Learned counsel for applicant has also placed reliance on the judgment of Apex Court in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731. Reliance has also been placed on several other judgments passed by Coordinate benches of this Court.

 4. Per contra, learned Additional Public Prosecutor for the State submits that the allegations against the present applicant are serious in nature. It is stated that the applicant was in constant touch with the main accused Daya Shankar and both the accused persons had travelled between Moradabad and Delhi on several dates, including 15.05.2016, 16.05.2016, 13.06.2016, 14.06.2016 and 05.07.2016. It is also averred by the learned APP for the State that the applicant was found in conscious possession of 80 kilograms of ganja.

5. I have heard the learned counsels and perused the material on record.

6. After having given thoughtful consideration to the documents placed on record, this Court is of the opinion that this is a case where recovery of 80 kg of ganja, which is commercial quantity, has been made from the accused/applicant. The definite embargo under Section 37 of the Act has to be kept in mind in cases under NDPS Act, in view of judgment of State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673,which clarifies that negation of bail is the rule and granting of bail is an exception under Section 37 of NDPS Act. Twin condition