A mere driver without conscious possession of contraband cannot be implicated in drug trafficking under the NDPS Act; thus, bail may be granted due to lack of substantial evidence and the absence of prior criminal history.

JUDGMENT

1. By this petition, petitioner seeks regular bail in the complaint filed by the Narcotic Control Bureau (in short `NCB') being Crime No.VIII/07/DZU/2020 under Sections 8 /21/29 Narcotic Drugs and Psychotropic Substances Act, 1985 (in short `NDPS Act').

2. When notice was issued in this petition on 12th April, 2021 learned counsel for the petitioner at the outset stated that the prayer for interim bail is a typographical error and the petition be treated as one for regular bail for which notice was issued by this Court.

3. Learned counsel for the petitioner contends that the petitioner was only a driver of the vehicle and had no connection whatsoever with the transaction or with the person who was involved in the transaction. No recovery whatsoever has been made from the petitioner. The fact that the petitioner was not involved in the offence is evident from the fact that the main accused tried to run away on apprehension but the petitioner did not try to run away. Petitioner has no criminal history and no previous conviction. The petitioner was not aware as to what was there in the packet and for what purpose the cash was being handed over. Even as per the case of the prosecution on the asking of the owner of the vehicle the petitioner gave the packet of cash which was lying in the car. Version of the so-called prosecution witnesses that the petitioner gave cash from his pocket is unbelievable. The rigours of Section 37 are not applicable as there is no reasonable ground to believe that the petitioner is guilty of the offence. Statement of the public witness Deepak Duggal cannot be relied upon as the same was recorded on 15th June, 2020 though the alleged recovery was made on 29th January, 2020. Further no reliance can also be placed on the statement of this witness for the reason admittedly the apprehension took place after 10.30 PM on a winter night and from a distance the transaction would not be visible to the public witness due to the low visibility. Reliance is placed on the decisions reported as MANU/DE/0819/2005, Kassu Ram vs. State; Mohd. Zuber vs. The State (NCT of Delhi), Bail Appln.3821/2006 decided on 30th October, 2006; 130 (2006) DLT 114, Karan Singh vs. The State (NCT of Delhi); MANU/DE/0581/2009, Dilbagh Singh vs. D.R.I.; Ravi Nadar vs. State of Chhattisgarh, MCRC No.6299/2018 decided on 3rd October, 2018 to contend that the petitioner being a mere driver of the vehicle and no recovery having been made from him, he cannot be said to be allegedly involved in the offence of possession of the narcotic drug.

4. Opposing the bail application, learned Senior Standing Counsel for the respondent/NCB states that the petitioner is a co-conspirator and active participant in the offence as he had come to the place of the incident in the car along with the main accused who purchased the narcotic drug and the money was in the pocket of the petitioner which on the instructions of the main accused was given by the petitioner to Nicolas. Besides the members of the raiding team, statement of the public witness Deepak Duggal has been recorded in this regard. Further the petitioner had come along with the main accused and hence it cannot be said that he had no knowledge of the purchase of the contraband. Material witnesses are yet to be examined, hence no bail be granted to the petitioner.

5. The above noted complaint was filed by the NCB impleading Sukhwinder Singh, Rajender Kumar the present petitioner and one Nicholas Nzube Ukaegbu as the three accused. Case of the respondent/NCB is that on 29th January, 2020 the intelligent officer received a secret information that two persons