The recovery of contraband from the possession of the accused, reliability of secret information, and the limitations prescribed under Section 37 of the NDPS Act are crucial factors in deciding bail applications under the NDPS Act.

JUDGMENT

Vijay Bishnoi, J. - The petitioner has been arrested in FIR No. 04/2019 of Police Station NCB, Jodhpur for the offence under Section 8/29 of the NDPS Act. He has preferred this second bail application under Section 439 Cr.P.C.

2. Learned counsel for the petitioner has submitted that as per the prosecution story, 6.400 kgs of opium have been recovered from the possession of the petitioner on 10.3.2019 by a team of the Narcotic Contral Bureau, Jodhpur (for short 'the NCB'). Learned counsel has submitted that in the complaint, the prosecution has alleged that on an information, the NCB has raided the premises, in which, the petitioner was found sitting in a shop and 6.400 kgs of opium were recovered from his possession. Learned counsel for the petitioner has submitted that the allegation levelled against the petitioner of possessing opium more than commercial quantity is absolutely false. It is argued that the NCB has failed to verify that the permises, where the alleged raid was conducted, belongs to the petitioner or he is the owner of the said premises. It is also submitted that as a matter of fact, as per the prosecution story, 6.400 kgs of opium were recovered from a metal box, which was lying on an open place. Learned counsel for the petitioner while inviting attention of this Court towards the statement of Seizure Officer - Banshi Lal (PW-3) and IO-Pritam Singh (PW-4) has argued that both the above-named witnesses, in their court statement, have clearly admitted that they have not verified that the place, from where they have allegedly recovered opium from the possession of the petitioner, belongs to him. It is submitted that as a matter of fact, the prosecution has allegedly recovered narcotic contraband from a place i.e. Thakurai Tiraha, whereas the petitioner is the resident of village Anvalkhera, which is around 10 - 15 kms away from the place of the alleged recovery of opium. Learned counsel has submitted that the petitioner is in custody from last more than three years and trial against him is still pending. It is also submitted that on the basis of the evidence produced by the production till date, it cannot be concluded that the prosecution will be able to prove the guilt of the petitioner before the trial court. It is, thus, submitted that in the facts and circumstances of the case, the petitioner may be enlarged on bail.

3. Per contra, learned Special Public Prosecutor has vehemently opposed the bail application and argued that the NCB was in receipt of a secret information on 9.3.2019 wherein name of the petitioner was clearly mentioned and the information is that the petitioner is going to supply 40 to 50 kgs of opium to one Bhanwar Lal, resident of Jodhpur. As the information was reliable, the NCB conducted raid in the presence of independent witnesses and recovered 6.400 kgs of opium from the possession of the petitioner. It is further argued by the learned Special Public Prosecutor that though the Seizure Officer as well as the IO have not verified that whether the premises, from where, huge quantity of opium was recovered is owned by the petitioner or not, but this fact itself will not vitiate the raid conducted by the NCB wherein 6.400 kgs of opium were recovered from the conscious possession of the petitioner. Learned Special Public Prosecutor has submitted that as per Section 37 of the NDPS Act, until and unless the court comes to a conclusion that prima facie the accused person is not guilty for commission of any offence under the NDPS Act, bail cannot be granted to an accused person.

4. Heard learned counsel for the parties and perused the material available on record.

5. It is not in dispute that the NCB was in receipt of a secret information to the effect that the petitioner is going to supply huge quantity of opium to another person. Treating the information as reliable, the NCB had conducted raid and in that raid, recovered 6.400 kgs of opium allegedly from the possession of the petitioner in t