Point of Law: Merely because petitioner is a foreign national cannot be taken as an impediment in grant of bail to petitioner.

ORDER :

1. Petitioner has approached this Court for grant of bail under Section 439 Cr.P.C in case FIR No. 65 of 2021 dated 15.09.2021 registered at Police Station New Shimla, District Shimla, H.P. under Sections 21, 27 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Petitioner was arrested on 24.09.2021 and since then is in custody.

2. On 15.09.2021, official of Police Station, New Shimla raided a residential house in Sector-2 of New Shimla on the basis of secret information that narcotic substances were being sold from the said house.

3. Five persons, all of young age, were found inside the house. Material found on the bed, inside the house, suggested use of heroin. On their personal search, nothing incriminating was recovered, however, 1.93 grams of heroin was found in a pouch on the bed. The case was registered.

4. During investigation, it was found that one of the persons found inside the house had procured the heroin from the co-accused Brahmjeet @ Jeeta from Chandigarh. Said Brahmjeet @ Jeeta was also arrested and interrogated. 10.34 grams heroin was recovered from him. He further disclosed that he had been procuring the heroin from Delhi from a person from Nigeria. Police team alongwith Brahmjeet @ Jeeta visited Delhi to nab the person belonging to Nigeria, whose name was disclosed as Ndubuisi Benedict (petitioner). On search, petitioner was found, who after noticing Brahmjeet @ Jeeta in the company of police officials immediately took out a packet from his pocket and threw the same in the drain. Petitioner was apprehended by the police. 9.22 gram heroin was recovered from the packet thrown by the petitioner in the drain. Petitioner was arrested.

5. Challan has been presented after completion of investigation. All other persons arrayed as accused in the case have already been released on bail.

6. I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent- State and have also gone through the record carefully. 6. The intermediate quantity of heroin is alleged to have been recovered from the petitioner. Rigors of Section 37 of the NDPS Act will not be applicable in the case.

7. The only evidence regarding the involvement of petitioner in the sale of contraband is the statement of coaccused Brahmjeet @ Jeeta. Though this Court will not minutely scan the evidence collected by the police during investigation, nonetheless, such material can be looked into for assessment of seriousness and gravity of allegations against the bail petitioner.

8. As noticed above, no other evidence except the statement of co-accused is available against the petitioner. The allegations of petitioner having thrown a packet containing the intermediate quantity of heroin on citing the police are yet to be proved.

9. Pre-trial incarceration is not the Rule. In the facts of given case, the prolonged incarceration of petitioner is not justified. He is already in custody for the last about nine months.

10. The prayer of the petitioner has been opposed on behalf of the petitioner on the ground that petitioner is a foreign national. He was involved in another case under the NDPS Act in Delhi and had remained in Tihar jail for about 14 months. It is apprehended that in case of release of petitioner on bail, he may abscond and the trial may be affected adversely. It is mentioned in the status report filed on behalf of the respondent that despite repeated correspondence with the Nigerian Embassy, the details of passport and visa etc, of the petitioner have not been made available till date. It is also submitted that petitioner is trying to suppress his true identity.

11. To meet the objection of the respondent, learned counsel for the petitioner has stated that police had more than enough time to verify the antecedents of the petitioner. Petitioner is stated to be holder of Nigerian passport which according to learned counsel for the petitioner is in the records of Court of learned Special Judge at De