The main legal point established in the judgment is the consideration of the nature of the offense, the classification of drug quantities, and the nationality of the accused in granting bail to foreign nationals accused of drug-related offenses.

JUDGMENT

Anoop Chitkara, J. - An under-trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Section 21 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for selling 20.5 grams of heroin (Diacetylmorphine).

2. Based on a First Information Report (FIR), the police arrested the petitioner, on 12.12.2019, in FIR No.159 of 2019, dated 7.12.2019, registered under Sections 21 & 29 of the NDPS Act, read with S. 201 of Indian Penal Code, 1860, (IPC), in Police Station, Bhawarna, District Kangra, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

3. Earlier, the petitioner filed a petition under Section 439 CrPC before learned Special Judge, Kangra at Dharamshala, HP. However, vide order dated 29.01.2020, the Court dismissed the petition, on the grounds that upon noticing the Police, the accused had run for a kilometer, before the Police caught him. Thus, the apprehension of the prosecution qua non-availability of the bail-petitioner can safely be said to be well-founded. There is a risk of fleeing from Justice, coupled with the fact that he was the main supplier of drugs. Before proceeding further, this Court would like to clarify that the story of Police qua chasing and nabbing prima facie appears to be a setup. It is quite unbelievable that they will be able to chase and catch a young African Male, that too on busy Delhi roads, especially when he was more accustomed to Delhi streets.

4. I have read the status report(s) and heard counsel for the parties. Mr. Lalit Kumar Sehgal, Advocate for the petitioner handed over a photocopy of a certificate dated 11th March 2020, issued by High Commissioner, High Commission of Nigeria, New Delhi, INDIA, which reads as follows:

"

TO WHOM IT MAY CONCERN

IDENTIFICATION: MR. NWOSU THEOPHILUS BDUBUISI

I am directed to confirm that Mr. Nwosu Theophilus Ndubuisi is a bonafide citizen of Nigeria; his Passport No.A09188779 was issued on 23rd August 2018 and will expire on 22nd August, 2023.

2. The High Commission requests kind assistance for all his transactions and communications.

3. Warm regards.

-sd-

Horsfall, Jacob Atannu

For High Commission

New Delhi, India"

5. Mr. Nand Lal Thakur, Learned Additional Advocate General, based upon instructions, stated that this certificate is genuine.

FACTS:

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

a) On 7th December 2019, the Police party was on patrolling duty and erected a barricade as a routine. At 7.15 a.m., one bus of HRTC came from the side of Bhawarna. The police party signaled the bus to stop, and after it came to a halt, started checking the bus and the passengers.

b) When the police party reached the last seat, two persons sitting there became uneasy, which raised suspicion in the mind of the Investigating Officer that they have some stolen property. After that, the Police associated the Driver and Conductor of the bus as independent witnesses. In their presence, the Police checked the bag, which the passenger sitting on seat No.44 was carrying on his lap. On opening it, the Police recovered handkerchief and one transparent polythene pouch containing a brown colored substance. The Police took out the said substance and tested it with the help of Narcotic Drugs Detection Kit, which showed that the substance tested positive for heroin. On inquiry, the said person revealed his name as Nitin Kumar.

c) The person sitting on seat No.43 revealed his name as Jayant Kumar. He confessed to the Police that this heroin belongs to him. After that, the cops weighed the said Heroin on Electronic Weighing Machine, and it measured 20.5 grams. Subsequently, the Police repacked the heroin in the same manner and sealed the same in the main bag. After that they conducted other procedural formalities under the NDPS Act and CrPC. Subsequently, the Police arrested the