The court ruled that the presumption of innocence applies and the absence of a commercial quantity of contraband allows for bail under the NDPS Act.

JUDGMENT :

(Virender Singh, J.)

By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (hereinafter referred to as ‘ BNSS ’), applicant-Shami Kumar has sought his release, on bail, during the pendency of the trial, in case FIR No.73 of 2023, dated 13.07.2023, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station East Shimla, District Shimla, H.P.

2. According to the applicant, he is innocent person and has falsely been implicated, in the present case, by the police, on the ground that the contraband, weighing 13.63 gms of chitta/heroin, was recovered from the vehicle, being driven by Kuldeep Kumar and it has allegedly been revealed by accused Kuldeep Kumar that he has purchased chitta from one Shami, R/o Panchkula (applicant).

3. It is the case of the applicant that the story of the prosecution is highly improbable and police has not considered the fact that the applicant is doing the business and also paying Income Tax Returns.

4. It is the further case of the applicant that he is having no other case, registered against him and the investigation, in the present case, is complete and charge- sheet has been filed, before the Court of learned Additional Sessions Judge, CBI Court, Shimla (hereinafter referred to as the ‘trial Court’). The case is now stated to be fixed for prosecution evidence for 03.03.2025.

5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, (CBI Court), Shimla, Himachal Pradesh. However, the same was dismissed vide order dated 22.02.2025.

6. Apart from this, Mr. Mukesh Sharma, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial.

7. On the basis of the above facts, a prayer has been made to allow the bail application.

8. When, put to notice, the police has filed the status report, disclosing therein, that on 12.07.2023, ASI Ambi Lal, Incharge, Special Investigation Unit, Shimla, submitted a ruqqa, through Ct. Dheeraj Kumar No.669, to Police Station East Shimla, District Shimla, H.P., mentioning therein, that on 12.07.2023, he, along with other police party, was on patrolling duty and duty to prevent the crime.

9. It is the further case of the police that when, police party was present at Mehli, then, at about 08:00 pm, they received a secret information, regarding the indulgence of Kuldeep Thakur and Saurav Chauhan, in the business of selling chitta and according to the said secret information, they are coming from Chandigarh and going towards Maliana side, in a car, bearing registration No.HP63-D-2992.

10. As per the said information, if the said vehicle is searched, then, chitta could be recovered. The said information was found to be authentic and reliable. As such, IO has complied with Section 42(2) of the NDPS Act, by submitting the report to the superior officer and thereafter, he has associated two independent witnesses, namely Bal Krishan Sharma and Sanju, after apprising them about the secret information.

11. It is the further case of the police that thereafter, at about 10:00 am, they noticed a car, bearing registration No.HP63-D-2992, being driven by its driver, coming from Mehli side. The car was signaled to stop, in which, two persons were found sitting. The person, who was sitting on wheel, disclosed his name as ‘Kuldeep Thakur, s/o Krishan Chand Thakur’, and the other person, sitting on co-driver seat, disclosed his name as ‘Saurav Chauhan, s/o Nareshwar Chauhan’.

12. Thereafter, the said car was searched and underneath the foot mat of the driver seat, a transparent plastic, containing granule shaped brown substance, was found and when, the same was checked on the drug detection kit, then, the same was found to b