Point of Law: Section 67 of NDPS Act cannot be made basis for registering the case against other person.

ORDER :

1. Bail petitioner, namely, Kesse Gerald, who is a foreign national and is behind the bars since 4.2.2021, has approached this Court for grant of regular bail in case FIR No. 22 of 2021, dated 30.1.2021, under Sections 20, 21 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and under Section 14 of Foreigner Act registered at Police Station Bhuntar, District Kullu, Himachal Pradesh.

2. Pursuant to notice issued in the instant proceedings, respondent-State has filed the status report, perusal whereof reveals that on 3.2.2021 police party, while on patrolling duty near TCP Bajora, District Kullu, (HP) stopped a car bearing Registration No. HP-34C-0671 for checking, Occupants of the car, six in number, got perplexed after having seen the police, as such, police deemed it necessary to effect personal search of the car and its occupants. After having associated independent witnesses, police conducted search and recovered one polythene bag from the dash board of the car containing 55 grams Heroine/Chitta. After completion of necessary codal formalities, police lodged FIR against the occupants of the car, namely, Jayant Sharma and Karan Sharma and arrested them. During investigation, above named persons disclosed to the police that they had purchased aforesaid quantity of contraband for a sum of Rs. 44,000/- from a Nigerian, namely, Alex from Dwarika, New Delhi. They also provided mobile number of the foreign national named herein above.

3. On the basis of the aforesaid information, police took both the accused named herein above to Delhi and raided the house of present bail petitioner at Dwarika, New Delhi. After having seen the police, two persons succeeded in fleeing from the house, whereas present bail petitioner was apprehended with the rucksack bag containing 6.297 KG heroine and 362 gram of Ganja. During investigation, police found that the room, from where aforesaid quantity of contraband came to be recovered was given on the lease to the person namely, Afamufile Goodness by person, namely, Vinod Kumar. Two persons namely Bidiaso Nnamdi Clifford and Ihedirioha Chiedozie Harrison were also residing there. During investigation, police called aforesaid persons for investigation and arrested them on 8.7.2021. Present bail petitioner as well as persons named herein above are in custody, whereas two persons Jayant Sharma and Karan Sharmaj, from whose conscious possession 55 grams of heroine was recovered, stand enlarged on bail. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court for grant of regular bail.

4. While fairly admitting the factum with regard to filing of challan in the competent Court of law, Mr. Sudhir Bhatnagar, learned Additional Advocate General submits that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence committed by him, he does not deserve any leniency and as such prayer for grant of bail made on his behalf deserves outright rejection. He further submits that there is overwhelming evidence available on record suggestive of the fact that Jayant Sharma and Karan Sharma not only purchased 55 grams of heroine from present bail petitioner but present bail petitioner himself was apprehended by police at Delhi with commercial quantity of contraband i.e. 6.297 KG Heroine and 362 GM Ganja. He submits that since petitioner herein, was arrested with commercial quantity of contraband, he is otherwise not entitled for grant of regular bail in view of the provisions of Section 37 of the NDPS Act, which prohibits grant of bail in the cases involving commercial quantity of contraband. Lastly he submits that the bail petitioner, who is a foreign national, had been indulging in serious crime having adverse impact on the society and as such it may not be in the interest of justice to enlarge him on bail, who otherwise in the event of his enlargement on bail m