The main legal point established in the judgment is the application of S. 37 of the NDPS Act, which sets out the conditions for granting bail in cases involving commercial quantities of contraband. The judgment also emphasizes the importance of satisfying the rigors of S. 37 and the need to consider the evidence and circumstances of each case.

JUDGMENT :

ANOOP CHITKARA, J.

1. The petitioner, who along with the main accused, is under incarceration from 25th September 2019, for allegedly selling 6 kilograms and 324 grams of charas and 413 grams of opium and after that supervising its transportation through another accused, has again come up before this Court seeking bail, on the grounds that this Court has granted bail to one of his co-accused.

2. Based on a First Information Report (FIR), the police arrested the petitioner, in FIR No. 83 of 2019, dated 27.5.2019, registered under Sections 18, 20 and 29 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called “NDPS Act”) read with S. 181, 192, 196 of Motor Vehicles Act, 1860, (MV Act), in Police Station, Jogindernagar, District Mandi, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

3. The petitioner filed a petition under Section 439 Cr.P.C. before Special Judge (I), Mandi, District Mandi, HP. However, vide order dated 31.10.2019, the Court dismissed the petition, because, in the opinion of the Court, the petitioner could not cross the rigors of S. 37 of the NDPS Act. After that, the petitioner filed a bail petition under Section 439 Cr.P.C. in this Court. Vide order dated Feb 28, 2020, passed in Cr MPM No. 29 of 2020, this Court had dismissed the said petition because the petitioner and the main accused Tule Ram, from whose possession the Investigator had recovered the charas, had made multiple phone calls between them, which calls immediately preceded such seizure.

4. The Petitioner has now come up before this Court seeking bail on parity because this Court has granted bail to co-accused Satish Kumar.

5. I have read the status reports and heard Ld. Counsel for the parties.

FACTS:

6. The allegations in the First Information Report and the gist of the evidence collected by the Investigator are:

(a) On 26th May 2019, the Police party headed by inspector/in charge of Police Station Jogindernagar, District Mandi, had erected/laid a barrier on National Highway No. 154. At around 8.15 p.m. one car came from the side of Mandi towards Jogindernagar. The Inspector signaled the driver of the said car to stop, and on this, the driver of the car brought it to a halt and parked it on the side of the road. After this, the Inspector checked the said car, which was Maruti Alto, and told him to show the car's documents. On this, the driver of the vehicle became perplexed and could not produce the registration certificate and other records of the car. He also started stammering and was extremely baffled. On inquiry, he revealed his name as Tule Singh.

(b) The body language and gesture of said Tule Singh raise suspicion in the mind of the Investigating Officer, (I.O.) that he was most likely possessing some contraband or drugs. After that, the I.O. sent one of the constables to bring an independent witness, who returned after 20 minutes and brought two persons Rakesh Kumar and Gaurav Kumar for being associated as independent witnesses for the ensuing search. In the presence of these witnesses, the I.O. searched the vehicle, and below the front left seat, they noticed one cloth bag. The Police took it out and opened it. It had three taped packets. On opening these three packets, the Police detected charas.

(c) Similarly, the Police recovered a bag from the dickey of the said car. This bag also contained one polythene, and one envelop and further contained five taped packets. On opening, the Police recovered charas from four packages and opium from one pack.

(d) On weighment, the first packet contained 3kg and 35 grams charas and the second packet contained 3kg and 289 grams charas and also 413 grams opium. After that, the police put back the charas and the opium in the same packets and in a similar way and sealed the same. After that, the police completed the other procedural requirement of the NDPS Act and Cr.P.C. and proceeded to arrest the accused. The police also took into possession of said Alto C