Under the NDPS Act, possession of narcotics exceeding commercial quantity creates a presumption of guilt, placing the burden of proof on the accused to establish innocence.

ORDER :

1. This bail application has been filed by the accused petitioner under section 439 CrPC in connection with FIR No. 02/2023 registered at Central Bureau of Narcotics, Kota for the offence punishable under Section 8/21 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’).

2. Facts of the case in nutshell are that on 06.03.2003 a secret information in regard to possession and transportation of illegal Narcotic drugs was received as regards the accused petitioner. The Superintendent, CBN, Kota constituted a team to verify the secret information received by the Preventive Team. The Preventive Team reached at the indicated place Mandana Toll Plaza, Kota Jhalawar Road, Kota in a private vehicle. At about 10:30 hrs. Rajasthan Lok Parivahan Bus bearing number RJ-20 PB 1816 was seen coming from the side of Jhalawar towards Kota which was stopped at Mandana Toll Tax by hand indication. On stoppage of bus driver, Sajid Khan and conductor Lalchand was given introduction by the complainant by showing confidential information about heroin smuggler Bhagwan Singh son of Prabhulal. Said person sells heroin in Kota after receiving the same from smugglers of Palkhanda. The said person boarded in Rajasthan Lok Parivahan Bus bearing number RJ-20 PB 1816 with 250 to 300 grams of heroin from Aklera for Kota. Particulars of Bhagwan Singh were also given. He is having back colour bag on which HP is written in English and he takes heroin in the said bag. It is not known that from whom the said person obtains heroin and to whom he sells in Kota. The complainant requested them to become ‘Punch’ for which they gave consent. The complainant and Sub Inspector Efaj Kureshi entered into the bus after giving their search to the punches. In the bus, on the left side last seat, one person was seen sitting having black colour bag in his hand. He was observed nervous. On this, the complainant gave him introduction and enquired his name. On this he informed his name as Bhagwan Singh son of Prabhulal. On enquiry he accepted that black colour bag belongs to him. He was informed about the information received from the informer and asked him for search of the bag. He informed that about 300 grams heroin is lying in the bag. He got down from the bus with bag in front of ‘Punches’. Looking to the possibility of attack from the other smugglers of the team and to safeguard the recovered heroin, it was proper to take the accused in the office of Dy. Narcotics Commissioner, Kota. The punches also gave their consent for their presence in the office of Dy. Narcotics Commissioner, Kota. At about 12, the team reached at Kota. Notice was given u/s 50 of the NDPS Act about search right of the accused. He gave consent for search by the complainant Sub Inspector. On search of the bag, apart from wearing cloths, one kesariya colour polythene bag in which one transparent plastic bag was found. On opened the bag in which, light brown colour powder type substance was found. On enquiry Bhagwan Singh told that the same is heroin. On testing by the departmental kit, the same was found to be heroin. The weight with plastic bag was found to be 300 gms.

On the basis of aforesaid typed report, an FIR No. 2/2023 was registered at Police Station Central Bureau of Narcotics, Kota for offence under section 8/21 of the Act of 1985.

3. Counsel appearing for the accused petitioner submitted that the quantity of Heroine recovered from the possession of the petitioner is less than the commercial quantity. Counsel submitted that there is clear violation of provision of Section 50 of the Act of 1985. Counsel further submitted that out of nine witnesses, the trial court has examined only five witnesses. Thus, the trial of the case is likely to take considerable time. Counsel submitted that the independent witnesses produced by the prosecution did not support the prosecution story. Counsel submitted that the provisions of section 37 of the Act of 1985 are not ap