JUDGMENT :

Vivek Singh Thakur, J.

Petitioner has approached this Court seeking bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in FIR No.76 of 2021, dated 8.4.2021, registered in Police Station Bhunter, District Kullu, H.P., under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

2. Status reports stand filed. Record was also made available.

3. As per status report on 7.4.2021, Police Party during checking of a Volvo Bus, apprehended one Kushwind (co-accused) on suspicion to check his bag. On checking, from the bag 6.528 Kilograms charas in the shape of Chapaties and balls were recovered. The same was seized. On the basis of rukka sent to the Police Station, FIR was registered in Police Station, Bhunter, District Kullu H.P..

4. On 8.4.2021, an application under Section 52A of NDPS Act was preferred before the Chief Judicial Magistrate, Lahaul Spiti at Kullu, and complying with procedure prescribed, representative samples were drawn in presence of Magistrate and inventory was certified, photographs were taken and certified by the Magistrate and application was disposed of vide order dated 8.4.2021.

5. During interrogation, Kushwind disclosed that he was transporting charas to Delhi which belonged to Rakesh Kumar (petitioner). On the basis of Call Details Record involvement of Rakesh Kumar was suspected, however, Rakesh Kumar was not traceable, as he was absconding after arrest of Kushwind and in these circumstances challan was prepared and presented in the Court on 3.7.2021.

6. According to status report, Rakesh Kumar could be arrested on 6.8.2021 and during investigation and interrogation, it was found that Kushwind and Rakesh Kumar were partners in purchase of charas recovered from Kushwind, and Rakesh Kumar had paid the amount to Kushwind through cheques worth 11,00,000/- during months of February and March, 2021. The said transaction of amount was through bank. The chequs were encashed by Kushwind under his signatures. Supplementary challan with respect to petitioner Rakesh Kumar was also presented in the Court.

7. As per respondent-State, except 1 witness, all witnesses have been examined and for recording remaining one witness matter has been listed on 12.1.2024.

8. Petitioner had approached the Special Judger-II Kullu by filing bail application No. 275 of 2021, titled as Rakesh Kumar Vs. State of H.P. for enlarging him on bail, but the said application was dismissed on 3.12.2021.

9. Petitioner had approached this Court also by filing Cr.M.P.(M) Nos. 411 of 2022, 1105 of 2022 and 110 of 2023, which were dismissed as withdrawn vide orders dated 21.3.2022, 1.8.2022 and 13.3.2023, respectively.

10. By way of instant petition, petitioner is seeking his enlargement on bail on the ground that there is procedural breach of right to privacy by taking Call Detail Records, which is violative of Article 21 of the Constitution of India and thus such evidence is illegal in toto, as there is no other evidence on record to involve the petitioner in commission of offence, therefore, petitioner is entitled for bail.

11. Second ground taken for enlarging the petitioner on bail is remoteness and vagueness in the financial transactions between the petitioner and Kushwind because these transactions form no reasonable nexus as to the abetment of crime.

12. Prayer for bail has also been made on the basis of delay in trial causing serious financial impact, loss of family consortium and subjecting the petitioner to face unnecessary incarceration. It has been further contended that a false story has been concocted by the Police that petitioner was absconding after arrest of Kushwind. It has been contended that no inquiry or procedural step were taken to arrest the petitioner, as required under law.

13. It has been further contended that there are serious lapses in compliance of procedure under Section 52A of NDPS Act and samples have not been drawn in terms of provisio