ORDER :

1. Bail petitioner, namely, Mohan Gharati, who is behind the bars since 02.01.2020, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C. for grant of regular bail in case FIR No. 02/2020, dated 02.01.2020, under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short “the Act”) registered at Police Station Dharampur, District Solan, H.P.

2. Pursuant to order dated 29.10.2021, respondent-State has filed status report. ASI Manohar Singh, Police Station Dharampur, District Solan, has also come present alongwith record. Record perused and returned. Close scrutiny of record/status report clearly reveals that on 02.01.2020, at about 9.30 P.M. police party on patrol duty after having noticed suspicious activities of three persons near Jawala Mata Temple, Dharmpur, deemed necessary to cause their search. Since accused after having seen police, made an attempt to flee away from the spot, police apprehended them and carried out their search. They allegedly recovered 1.460 kgs and 1.470 kgs of opium each, from the rucksacks (Pithu bags) of the persons, namely, Shashi Ram Pun and Suresh Gharti, whereas, nothing was recovered from the conscious possession of the present bail petitioner. Since, no plausible explanation, if any, ever came to be rendered on record qua the possession of aforesaid quantity of contraband from the conscious possession of two persons named hereinabove, police after completion of necessary codal formalities, lodged FIR detailed hereinabove and arrested accused including present bail petitioner. Since, bail petitioner was alongwith persons from whose conscious possession contraband came to be recovered, police also registered case against him. Both the accused, namely, Shashi Ram Pun and Suresh Gharti, from whose conscious possession intermediate quantity of opium came to be recovered, already stand enlarged on bail, whereas, present bail petitioner is behind the bars. Since, challan stands filed in the competent court of law and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.

3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of challan in the competent court of law and enlargement of other co-accused on bail, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail may be rejected. Mr. Bhatnagar, further submits that though nothing came to be recovered from the conscious possession of the present bail petitioner, but there is overwhelming evidence adduced on record suggestive of the fact that present bail petitioner alongwith other co-accused indulged in illegal trade of narcotics and as such, it cannot be said that he has been falsely implicated. Lastly Mr. Bhatnagar, learned Additional Advocate General, states that since two accused came to be apprehended together by police, alleged contraband of 2.930 kgs. (1.460 kgs + 1.470 kgs) can be said to be recovered from the conscious possession of the accused named in the FIR and as such, rigours of Section 37 of the Act are attracted; and prayer made on behalf of the present bail petitioner for grant of bail, deserved outright rejection.

4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on the date of alleged incident, police without associating independent witnesses, allegedly recovered 1.460 kgs and 1.470 kgs of opium each, from two bags allegedly carried out by two accused, namely Shashi Ram Pun and Suresh Gharti. It is not in dispute that nothing came to be recovered from the conscious possession of present bail petitioner, rather he only came to be named in the