Point of Law: Bail - Even in the absence of fulfillment of one of dual conditions prescribed in Section 37 of the NDPS Act, bail cannot be granted.

ORDER :

1. Petitioner is an accused in case registered vide FIR No. 147 of 2021 dated 23.11.2021 at Police Station, BSL Colony, Sundernagar, District Mandi, H.P. under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short , “NDPS Act”).

2. Petitioner was arrested on 23.11.2021 and remained in police custody till 26.11.2021, where after, petitioner is in judicial custody till date.

3. The case of respondent is that on 23.11.2021, car bearing No.HP-31C-7010 was apprehended at Police Naka on road leading from Rohanda to Pandar within the jurisdiction of Police Sation, BSL Colony, Sundernagar, District Mandi, H.P. Three persons including petitioner were occupying the car. Petitioner was sitting on rear seat. Suspicion was entertained from the conduct of occupants of the car. On checking a bag was found on the footmat in front of the front passenger seat of the car. 2 kg. 840 grams of Charas was found from the bag. Case was registered. All the occupants of the car were arrested. As per police case, the contraband had been produced by accused Bhagat Ram. Petitioner and other accused Jagdish Kumar had promised Bhagat Ram to help them in selling the contraband and hence all three were together in the car alongwith contraband. The challan is stated to have been filed.

4. Petitioner has prayed for grant of bail under Section 439 Cr.P.C. in the above noted case on the ground that he is innocent. It is submitted on behalf of the petitioner that petitioner is serving as Animal Attendant MSC Dhanog and was not aware about the presence of contraband in the car. Petitioner had availed casual leave on 22.11.2021 and 23.11.2021 and was returning from his native village to his place of posting. On way, he had taken lift from Jagdish Kumar.

5. I have heard learned counsel for the petitioner and learned Additional Advocate General for the State and also have gone through the status report.

6. The contraband involved in the case is of commercial quantity. Rigors of Section 37 of the NDPS Act are applicable with all forces.

7. Admittedly, petitioner was one of the occupants of the car from which huge quantity of Charas was recovered by the police. In order to get rid of rigors of Section 37 of the NDPS Act, petitioner has to show prima-facie that he is not involved in the crime. The burden that lies on the petitioner is not discharged by merely stating that he is a government servant and had taken the lift in the car. The NDPS Act carries provision for reverse burden and such burden is to be discharged by the accused.

8. Thus, in view of given facts situation, it cannot be said that there is no prima-facie material to involve the petitioner in the case. It being so, Section 37 of the NDPS Act places an embargo in grant of bail to the petitioner. Even in the absence of fulfillment of one of dual conditions prescribed in Section 37 of the NDPS Act, bail cannot be granted.

9. In view of aforesaid discussion, there is no merit in the petition and the same is dismissed.

10. Any observation made in this order shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.