The main legal point established in the judgment is the application of Section 439 Cr.P.C. and the Supreme Court directives regarding bail for undertrial prisoners under the NDPS Act, considering the seriousness of the allegations, the period of incarceration, and the likelihood of a lengthy trial.

ORDER

Rajnish Bhatnagar, J. This is a petition filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in FIR No. 78/2017 under Sections 21 NDPS Act registered with Police Station Special Cell.

2. In brief the facts of the case are that on 27.10.2017, at about 11:30 AM, one of the secret informers gave information that one Afghani national, namely, Hanif has reached Delhi alongwith consignment of Heroin and the same will be delivered to his associate in area of Mehrauli. Accordingly, a raid was conducted and during the raid near Madhi Masjid Sri Devpurji Ashram Marg, Mehrauli, Delhi, one person, namely, Mohd. Hanif s/o Abdul Samad r/o Near Petrol Pump, Dewan Begi, Khushal Begi, Khushal Khan, Kabul, Afghanistan was apprehended along with a black colored cloth bag which he was carrying in his right hand. During the search of the black coloured cloth bag which the petitioner was carrying in his right hand, a recovery of 525 grams Heroin was effected. In this regard, case FIR No. 78/2017 dated 27.10.2017 under Section 21 NDPS Act was registered at P.S. Special Cell.

3. During the investigation of the case, the petitioner was arrested on 27.10.2017. On interrogation, the petitioner disclosed that one consignment of Heroin is kept in his trolly bag at his rented room at Lajpat Nagar-II, Delhi. Accordingly, at the instance of accused Mohd. Hanif, 575 grams Heroin was also seized from his rented flat at Room No. 2, Fourth Floor, E-28/B Lajpat Nagar-II, Delhi in the presence of two independent witnesses. From the rented room one Afghani passport bearing no. 02867826 of accused/petitioner was also recovered and it was revealed that as per the passport, name of the petitioner is Qari Mohammad Hanif Samadi s/o Abdul Samad r/o Near Petrol Pump, Dewan Begi, Khushal Khan, Kabul, Afghanistan.

4. I have heard the Ld. Counsel for the petitioner, Ld. APP for the State and perused the Status Report filed by the State.

5. Learned counsel for the petitioner submitted that the petitioner is an Afghan National who does not know Hindi is being falsely implicated in this case. He further submitted that he is in judicial custody since 27.10.2017 and has undergone more than 5 years 7 months and 22 days. He further submitted that the petitioner has clean antecedents and no purpose will be served by keeping the petitioner in judicial custody. In support of his contentions, Ld. counsel for the petitioner has also placed reliance on Anil Mahajan vs. Commissioner of Customs, [84 (2000) DLT 54]; H.B. Chaturvedi vs. CBI, [2010(3) JCC 2109 DHC]; Sanjay Chandra vs. CBI, [Criminal Appeal No. 2178/2019] and Suresh Kalmadi vs. CBI, [Bail Appln. 1692/2011].

6. On the other hand, learned APP for the State has vehemently opposed the bail application and has argued on the lines of the status report. It is submitted by the Ld. APP for the State that the petitioner is a foreign national who indulged in illegal trafficking of contraband substances and total 1.100 kg Heroin which is commercial quantity has been recovered from the petitioner. He further submitted that from investigation regarding subscribership's of mobile numbers, it has been revealed that the petitioner used mobile phones issued on other person' identity in order to conceal his identity. He further submitted that the petitioner also used two different passports to travel to India which were issued on different name and date of birth in order to evade arrest by law enforcing agencies. Lastly, he submitted that keeping in view the fact that the petitioner is a foreign national, recovery effected from petitioner which is of commercial quantity and the serious allegations against the petitioner, there is strong likelihood of him absconding if released on bail.

7. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India, [(1994) 6 SCC 73], the Hon'ble Supreme Court has observed and held as under:

"15....We, therefore, direct as under:

(i) Where the undertrial