The court reinforced that possession of commercial quantities of narcotics creates a presumption of guilt, placing the burden on the accused to prove otherwise.

ORDER :

1. This bail application has been filed by the accused petitioner under section 439 CrPC in connection with FIR No. 0142/2023 registered at Police Station Modak, District Kota Rural for the offences punishable under Sections 8/15, 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’) and sections 420 and 465 IPC.

2. Facts of the case in nutshell are that on 11.07.2023 complainant Mr. Rajendra Prasad, SHO, Police Station Modak along-with his team reached at NH-52 for regular patrolling. At that time around 02:00 AM, one Swift VDI Car bearing No. RJ-27- CE- 5256 and one another Creta Car bearing No. RJ-27-CH-6331 seen coming towards Jhalawar and on seeing the police team they tried to flee. The police team intercepted both the cars and search was conducted in which 05 sacks were recovered from the Creta Car containing 02 Quintal and 02 kg. Doda Chura. When the seized Creta Car was checked from its Engine number then the original number of said was found to be RJ-45-CF-2792. Thus, by affixing another number plate on the vehicle, the petitioner has committed the offence of cheating.

3. Counsel appearing for the accused petitioner submitted that the accused petitioner deserves to be released on bail on the count that the prosecution has not enclosed the FSL report along-with the charge-sheet filed in the matter. Counsel further submitted that it is the FSL report only which may determine the fact whether material / substance recovered from the possession of the petitioner is Narcotic Drug/ Psychotropic Substance. Counsel further submitted that the petitioner is behind the bars since 11.07.2023. Counsel further submitted that the provisions of Section 37 of the Act of 1985 are not applicable in the facts and circumstances of the present case. Counsel for the accused petitioner submitted that provisions of sections 42, 50, 55 and 57 of the Act of 1985 have not been complied with. Therefore, the accused petitioner may be released on bail.

4. Learned Public Prosecutor appearing for the State has vehemently opposed the bail application and submitted that from the possession of accused petitioner 2 quintal and 2 kg. Doda Chura has been recovered, which is a very huge quantity. Learned Public Prosecutor further submitted that non-filing of the FSL Report along-with the charge-sheet does not create any right of the accused petitioner for enlarging him on bail. Learned Public Prosecutor further submitted that the provision of section 37 of the Act of 1985 clearly speaks that no person accused of an offence punishable for the offences involving commercial quantity may not be released on bail because at this stage it cannot be said that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

5. In support of his submissions counsel appearing for the accused petitioner has placed reliance upon the order dated 04.12.2023 passed by the Hon’ble Apex Court in the case of Pankaj Gupta Vs. Narcotics Control Bureau, Petitions for Special Leave to Appeal (Crl.) No. 12200/2023 as also the order dated 13.12.2021 passed in Mohd. Arbaz & Ors. Vs. State of NCT of Delhi, Petition for Special Leave to Appeal (Crl.) No. 8164-8166/2021.

6. Considered the submissions made by the learned counsel appearing for the accused petitioner as well as learned Public Prosecutor and also perused the challan papers.

7. Having gone through the orders, referred to above by the counsel for the accused petitioner, this Court finds that in those matters the accused petitioners therein were ordered to be released on bail having considered the fact that they have been in long incarceration but in the present case the custody of the accused petitioner is just only about one year.

8. It is a fact on record that Narcotic Drug ‘Doda Chura’ weighing 02 quintal and 2 kg. has been recovered from the possession of the accused petitioner and the quantity of such