ORDER :

1. The instant bail application has been filed by the petitioner Rakesh S/o Shri Kishanlal under Section 439 Cr.P.C against the order impugned dated passed by learned court below in connection with FIR No.029/2021 registered at Police Station Hathunia, District Pratapgarh for the offences under Sections 8/15 and 29 of NDPS Act.

2. The first bail application came to be dismissed by this Court vide order dated 20.12.2022 with liberty to the petitioner to file afresh after statement of the I.O. is recorded in trial. Now, the I.O. has been examined, hence the present second bail application is filed.

3. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars. He submits that there is no legally admissible evidence against the accused-petitioner to connect him with the alleged recovery of poppy husk affected from the principal accused. The alleged disclosure statement was said to have been made by the principal accused Tulsiram, who stated to the police regarding involvement of the petitioner, but except his confession, nothing has been recovered or discovered, therefore, the contents of the said information cannot be taken into evidence as the same is beyond the arena of Section 27 of the Evidence Act. He have been made accused on the strength of confessional statement made by the co-accused during police custody which is otherwise not admissible in evidence by virtue of Sections 25 and 26 of Indian Evidence Act. The said disclosure statement does not come within the ambit of Section 27 of Indian Evidence Act. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession.

4. He further submits that the bail application of co-accused persons namely Mahesh, Niranjan Kumar, Rooplal, Kanwarlal and Laxminarayan have been allowed by a co-ordinate Bench of this Court; the case of the present petitioner in no manner distinguishable from his case. Thus, on the ground of parity, he has right to be released on bail. He submits that after investigation, charge sheet has been filed and the entire charge sheet does not have an iota of evidence against the petitioner except the aforesaid confession, for which, further incarceration of the petitioner cannot be allowed. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the condition under Section 37 of the NDPS Act do not come in way of releasing the petitioners on bail.

5. Per contra, learned Public Prosecutor opposed the bail application on the ground that contraband poppy husk weighing 383 Kilograms was recovered at the instance of principal-accused persons which was recovered from the car of petitioner. The recovered contraband are way above the demarcated commercial quantity and therefore, in view of the bar contained under Section 37 of NDPS Act, no case of bail is made out.

6. Heard. Perused the material available on record.

7. It is alleged that the said principal-accused disclosed this fact to the I.O. that the present petitioner was driving the pickup and upon seeing the police he fled away from the spot. Except the fact that the petitioner is the registered owner of the vehicle and there is an incriminating confessional statement of principal-accused, no other material has been collected by the agency to show any nexus between the petitioner and the alleged recovery. The Investigating Officer Dr. Naveen Kumar has been examined in trial, wherein in his cross-examination, he candidly admits that besides the confessional statement in the form of disclosure statement and the interrogation note, he could not find or collect any direct or indirect evidence, which can show nexus between the principal accused and the petitioner. He candidly admits that no informat