Point of Law: Merely because police has found some evidence of withdraw of money by Mandeep Kumar from ATM at Anni is not sufficient to infer that money was paid to petitioner - Exchange of phone calls is a subject matter of trial and cannot be used to the impediment of petitioner at this stage.

JUDGMENT :

SATYEN VAIDYA, J.

1. By way of instant petition, petitioner has prayed for grant of pre-arrest bail in case FIR No. 18 of 2022 dated 13.3.2022, registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act (for short “the Act) at Police Station, Kandaghat, District Solan, H.P.

2. The petitioner was admitted to interim bail on 7.12.2022, whereater he has joined the investigation.

3. Brief facts necessary for adjudication of petition are that as per police case, during intervening night of 12.3.2022/13.3.2022 at about 1.10 p.m. police patrol party recovered 744 grams of charas from one Mandeep Kumar, son of Sh. Puran Chand near Kandaghat, District Solan, H.P. The said Mandeep Kumar was arrested after registration of the case and during his interrogation, it was discovered that the contraband was sold to Mandeep Kumar by petitioner in the instant case.

4. During investigation, police found the exchange of mobile phone calls from the mobile of Mandeep Kumar with Mobile No. 787692-20527 and such number was found to have been issued in the name of wife of petitioner. Mandeep Kumar also allegedly disclosed to the police that he had withdrawn Rs. 20,000/- from ATM at Anni in District Kullu and had paid the said amount to the petitioner.

5. In its status report, it is submitted by the respondent that the petitioner had been evading the arrest during investigation of the case and despite various efforts by police, he could not be found.

6. On the other hand, petitioner has submitted that his implication in the case is false. He works as a Meson and had throughout been in his native village. No one had come to inquire from him. It has been contended on behalf of the petitioner that the petitioner is a law abiding citizen and has no criminal antecedent and has roots in the society. He has approached this Court only on apprehension of his arrest as recently, he came to know that the police had implicated him falsely in the case. Petitioner has undertaken to abide all the terms and conditions as may be imposed against him.

7. Challan against Mandeep Kumar has already been filed in the Court. As per case of respondent, supplementary challan against petitioner is in the process on being filed. I have heard learned counsel for the parties and have also gone through the record carefully.

8. The allegation against the petitioner is that he had sold the contraband to Mandeep Kumar at his native village in District Kullu. It is further alleged that petitioner had received a sum of Rs. 20,000/- from Madeep Kumar. The exchange of mobile phone calls between Mandeep Kumar and petitioner is also alleged. Thus, the implication of petitioner in the case is with the aid of Section 29 of the NDPS Act. It is a case of recovery of intermediate quantity of charas, therefore, the rigors of Section 37 of the Act will not apply.

9. This Court after perusing the record of police file had found that after April, 2020, no serious effort was made to nab the petitioner.

10. The statement of co-accused implicating the petitioner by itself is not admissible in evidence. Merely because the police has found some evidence of withdraw of money by Mandeep Kumar from ATM at Anni is not sufficient to infer that money was paid to the petitioner. The exchange of phone calls is a subject matter of trial and cannot be used to the impediment of petitioner at this stage.

11. The investigation of the case is already complete and the petitioner is not required for custodial interrogation. The challan against co-accused has already been presented and supplementary challan against petitioner is stated to be under preparation.

12. The aforesaid facts have been taken into consideration only for prima-facie assessment of seriousness and gravity of allegations against petitioner. The allegations against the petitioner are to be proved during trial. In my considered view, the facts of present case do not warrant pretrial incarceration of the petitioner.

13. The petit