JUDGMENT

Vikas Mahajan, J.

1. The present petition has been filed under Section 439 r/w Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C) seeking grant of regular bail to the petitioner in Crime No. VIII/02/DZU/2020 under Sections 8/21/23/29 NDPS Act instituted by the NCB.

2. Vide order dated 05.09.2022, notice was issued in the bail application of the petitioner and the respondent/NCB was directed to file a status report. The respondent has filed a status report dated 31.10.2022, which forms part of the record.

3. The case of the prosecution as borne out from the status report/reply is that on the basis of a secret information dated 28.12.2019, Habibullah Nabi Zada (the petitioner herein) and Abdul Wadood Ahmadi (co-accused), who arrived by Flight No. FG-313 of Arena Airlines at T- 3, IGI Airport, were intercepted near the exit of terminal building.

4. Upon enquiry, both the suspects voluntarily disclosed that they had swallowed 15 drug capsules each. Thereafter they were brought to Safdarjung Hospital, where the Doctor on duty confirmed about foreign body in the stomach of both of them. Accordingly, they were admitted in the said Hospital for medical support in ejection of the said foreign bodies.

5. Thereafter, upon ejection of the foreign bodies from the stomach of the accused persons on 03.01.2020, the NCB Team alongwith Doctor on duty and interpreter Ms. Puspa, in the presence of independent witnesses, counted all capsules, cut-opened each capsule and then tested one by one each capsule.

6. Firstly, upon testing set of 15 capsules eased out by Habibullah Nabi Zada, the same were found to contain off-white-powdery substance in each capsule. When tested, the powder gave positive result for Heroin and it was the same substance in all capsules.

7. On weighing the powdery substance compressed in said 15 capsules, it came out 225 Grams. Thereafter, second set of 15 capsules eased out by Abdul Wadood Ahmadi were also cut opened and upon testing, each capsule was found to contain similar type of substance and tested for Heroin. On weighing, the substance from said 15 capsules weighed 225 grams Heroin.

8. It is in this backdrop that the present case was registered by the respondent/prosecution and the accused persons including the present petitioner came to be arrested on 03.01.2020.

9. Mr. Gautam Khazanchi, the learned counsel appearing on behalf of the petitioner, at the outset submits that the petitioner is a farmer belonging to a poor segment of the society having family comprising of wife and 07 children, who are dependent on the petitioner for their survival.

10. On merits, he submits that the rigors of Section 37 of the NDPS Act are not applicable in the present case and the prosecution has erroneously attributed the weight of the total contraband to the petitioner to allege that 450 grams have been recovered in the present case, which is a commercial quantity.

11. He contends that the alleged recovery from the stomach of the petitioner is only 225 grams, which is an intermediate quantity and thus, the petitioner is not required to meet the threshold under Section 37 of the NDPS Act.

12. He submits that the recovery made from the stomach of co-accused cannot be attributed to the petitioner since the petitioner did not have the conscious/physical possession of the 225 grams of heroin which has been allegedly recovered from the stomach of the co-accused. In these circumstances, the petitioner could not have exercised any control or dominion over the alleged heroin which was allegedly recovered from the stomach of the co-accused. To support his aforesaid contention, the learned counsel relied upon the judgments of the Punjab & Haryana High Court in Amit Dhanak v. State of Haryana, CRM-M-33684-2020, P&H HC, Sukhwinder Singh v. State of Punjab, CRM-M-13534-2022, P&H HC, Sukhdev Singh v. State of Punjab, CRM-M-53872-2021(O&M), P&H HC.

13. He submits that case set up by the prosecution that the petitioner