Point of Law: Belief under Section 37 of Act also cannot be said to be a substitute for an opinion as to innocence of bail petitioner.

JUDGMENT :

(Satyen Vaidya, J.)

1. The petitioner is an accused in case FIR No. 139 of 2022, dated 22.8.2022, registered under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, (for short ‘NDPS Act’, at Police Station, Majra, District Sirmaur, H.P. She is in custody since 22.8.2022.

2. The case against petitioner is that on 21.8.2022, police received secret information at about 8.00 p.m. to the effect that petitioner was indulging in trade of Narcotic drugs. Her husband Malkhan Shah and father-in-law Jambil Shah were already in custody in similar offence. Police searched the house of Malkhan Shah, where petitioner was found present with her children. Commercial quantity of capsules and tablets with salts violating the provisions of NDPS Act were recovered. The case was registered and petitioner was taken in custody.

3. The investigation in the case is complete. Petitioner is facing trial before learned Special Judge. After framing of charge, one prosecution witness has already been examined.

4. Petitioner has alleged her false implication in the case. It is submitted on behalf of the petitioner that she was earlier married to Malkhan Shah for the last about 13 years. Petitioner had four children from the wedlock and youngest of them was only 1½ years old. The husband (Malkhan Shah) and his other family members were involved in trade of narcotic drugs. Petitioner was always opposed to their occupation and as a result the family of husband of petitioner was not on good terms with her. The husband and father-in-law of petitioner were in custody since 22.4.2022 in case registered vide FIR No.63 of 2022 dated 21.4.2022 under Section 22 of the NDPS Act at Police Station, Majra, District Sirmaur. In the year 2022 in one of the raids by police on the house of husband of petitioner, she was also apprehended and made accused in case registered vide FIR No. 28 of 2020 dated 5.3.2020 under Section 21 of the NDPS Act. She had been released on bail in the said case also.

5. It is further contended on behalf of the petitioner that she had obtained divorce from Malkhan Shah and thereafter on 20.5.2022 had married another person named Sanavvar R/o District Saharanpur, U.P. She thereafter was residing with Sanavvar. Except for the youngest child, all other children were left in custody of Malkhan Shah. On 21.8.2022 one Ramzan (brother of Malkhan Shah) got the petitioner framed in a false case with a purpose to settle the score. He entertained a belief that Malkhan Shah and Jambil Shah had been arrested on the tip-off provided by petitioner. Petitioner was called to her old matrimonial home on the pretext that she should take away her belongings. Petitioner had to stay back during night in her old matrimonial house on account of her inability to return back to the house of Sanavvar the same day. Taking benefit of the presence of petitioner in the house of Malkhan Shah, she was got arrested on a false charge, whereas, she had nothing to do with alleged offence.

6. The prayer made by the petitioner is opposed on the ground that the involvement of petitioner is in a case involving commercial quantity of contraband. She is not entitled to bail keeping in view the rigors of Section 37 of the NDPS Act (for short, ‘the Act’). Her involvement in a previous case has also been pleaded as one of the grounds to deny her right of bail. It is submitted that petitioner is habitual offender and in case of her release, she may again indulge in similar activity.

7. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

8. The quantity of contraband allegedly recovered from the possession of petitioner constitutes commercial quantity. Thus, in order to succeed in the present petition, petitioner has to make out a case of exception under section 37 of the Act. Exceptions are, that Court has to have reasonable grounds for believing that petitioner is not guilty of such offence and further that she is not lik