Point of Law : Court is of the view that if an arrest and detention is not permissible on the basis of a statement of a co-accused, no investigation would be possible leading to a situation of anarchy and lawlessness.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. Heard Shri JI Borbhuiya, learned counsel for the petitioner, namely, Mahesh Ray @ Roy, who has filed this application under Section 439 CrPC seeking regular bail in connection with NDPS Case No. 81/2019 arising out of NCB Crime No. 05/2019 registered under Sections 21(c)/29 of NDPS Act, 1985. Also heard Shri SC Keyal, learned Standing Counsel, NCB.

2. The petitioner was arrested on 21.05.2019.

3. In terms of the order passed earlier, the scanned copy of the case records has been transmitted to this Court.

4. Shri Borbhuiya, the learned counsel for the petitioner makes the following submissions:

i. The petitioner was not named in the search cum seizure list dated 07.05.2019.

ii. No recovery whatsoever was made from the petitioner.

iii. The name of the petitioner was inserted as accused no. 3 only in the time of final complaint by the NCB.

iv. The petitioner has been arrested only on the basis of the statements made under Section 67 of the NDPS Act by co-accused.

5. Shri Borbhuiya, the learned counsel for the petitioner submits that the petitioner has been in custody for almost three years and therefore, there is no requirement of any further custodial detention.

6. In support his submissions, the learned counsel has placed reliance upon the case of Hira Singh and Anr. Vs. Union of India and Anr. AIR 2020 SC 3255.

7. On the other hand, Shri SC Keyal, the learned Standing Counsel, NCB submits that the petitioner is under a duty to make out a case for grant of bail based on the facts and circumstances and the concept of precedent in criminal cases except for a point of law may not be to that degree as in civil case. It is submitted that the case of Hira Singh (Supra) relied upon would rather come to the aid of the prosecution and in this connection paragraph 10 of the said Judgment has been pressed into service, the relevant part of which reads as follows:

"10. In view of the above and for the reasons stated above, Reference is answered as under:

(I) The decision of this Court in the case of E. Micheal Raj (supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substances, the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substances, the quantity of neutral substances is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;

(III) Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No. S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;

(IV) Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed."

8. The learned Standing Counsel has submitted that records would reveal that co-accused Nirmal Kumar Sah has clearly implicated the present petitioner stating that the materials belonged to the petitioner and in this connection reference has also been made to bail application being BA No. 560/2022 filed by the said Nirmal Kumar Sah.

9. The learned Standing Counsel submits that the trial is at an early stage wherein only one witness has been exa