IMPORTANT POINT
The court emphasized that personal liberty must be prioritized over statutory restrictions in granting bail, especially when there are violations of mandatory provisions.

ORDER :

Farjand Ali, J.

1. The jurisdiction of this Court has been invoked by way of filing this application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. It is contended on behalf of the accused-petitioner that co-accused Bhagirath S/o Chananram, whose case is exactly similar to that of the petitioner has been enlarged on bail by this court vide order dated 09.10.2024, thus, on the ground of parity, the petitioner too deserves to be granted the same indulgence.

3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application.

4. I have considered the submissions made by both the parties and have perused the material available on record. Co-accused Bhagirath S/o Chananram, whose case is not at all distinguishable from the petitioner has been granted bail by this court vide order dated 09.10.2024 passed in S.B. Criminal Misc. III Bail Application No.10845/2024. For ready reference, the relevant portion of the said order is quoted hereinbelow :-

"3. After the unsuccessful pursuit of the fleeing suspect two persons were spotted holding plastic sacks in their hands near a pile of stubble in Nohra. The police officers instructed them to stand still as they were and questioned about their identity. They disclosed themselves as Govind Bahadur S/o Sundar and Bhagirath S/o Chananram. They confirmed that the person who fled was Satpal alias Manu Bishnoi, the owner of the Dhani. When they were questioned regarding the packets in their possession, they failed to furnish a satisfactory explanation. After taking action as per rules, the packets in their possession were taken into police custody and additional packets were recovered from buried place under stubble in the raw shed. In total, 12 fully stitched packets and one partially filled packet were recovered. Upon opening and inspection, all packets were found containing poppy husk. The total weight of the seized contraband comes to 02 quintal 50 kg 200 gm.

4. It is evident that in the case at hand, the main accused Satpal is an accused of keeping a total of 02 quintals 50 kg 200 grams of poppy husk at his residential hamlet without a valid license and the said illegal narcotic substance has been seized by the police team in the presence of co-accused Govind Prasad and the present petitioner Bhagirath. The petitioner Bhagirath has been arrested in this case under sections 8/15, 25 and 29 of the NDPS Act. After search and seizure, samples were collected and sent to the FSL for its chemical examination.

5. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. If the seizure of the contraband is not made as per the legal provision then the embargo contained under Section 37 of the NDPS Act is not applicable. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.

6. Contrary to the submissions of learned counsel for the petitioner, learned Additional Government Advocate opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

7. I have considered the submissions made by both the parties and have perused the material available on record.

8. Prima facie, it appears that the petitioner is neither the owner of the place from where the recovery was made, nor have any dominion over the recovered contraband rather, it seems that he was merely performing the role