Non-disclosure of prior criminal activity and association with a drug trafficking gang warrant denial of bail despite claims of non-commercial drug quantity.

JUDGMENT :

Virender Singh, J.

Applicant Vijay Bihari has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘the B.N.S.S.’) for releasing him, on bail, during the pendency of the trial, in case FIR No. 177 of 2023, dated 22.11.2023, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS’) registered with Police Station, Theog, District Shimla, H.P.

2. According to the applicant, he has falsely been implicated in this case.

3. As per the applicant, the quantity of chitta/heroin, allegedly recovered from his possession, is 179.98 grams, whereas, the same has been found to be weighing 170.668 grams, in the laboratory.

4. It is the case of the applicant that he is a young man of 25 years and the sole bread earner of his family.

5. It is the further case of the applicant that he is having deep roots in the society, and except the present case, no other case has been registered against him.

6. According to the applicant, chances of conclusion of trial, against the applicant, in near future, are not so bright, as such, no useful purpose would be served by keeping him in judicial custody. The contraband, allegedly recovered, in this case, is also stated to be not falling within the definition of ‘commercial quantity’.

7. All these facts have been highlighted to show that rigors of Section 37 of the NDPS Act are not applicable, in the present case.

8. On the basis of above facts, Ms. Rameshwari Sharma, Advocate, appearing for the applicant, has given certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail.

9. When, put to notice, Police has filed the status report, disclosing therein that on 21.11.2023, ASI Narender Kumar, Incharge, Police Chowki, Fagu, received a secret information on his mobile phone, at about 11:45 p.m. As per the information, a vehicle bearing No.HR-04K-0225, being driven by its driver, was moving from Kufri side. There were stated to be three occupants in the said car, who were having large quantity of narcotic substance, in their possession. The said information was found to be authentic and reliable.

9.1 It is the further case of the Police that according to the I.O., the Court complex was at a considerable distance, as such, it was not possible for him to obtain search warrant, and in case, any efforts were made in this regard, in that eventuality, the contraband could have been removed from the vehicle, upon which, he has complied with the provisions of Section 42 (2) of the NDPS Act, and submitted the same to the SDPO Theog, through Constable Amit. Thereafter, I.O. alongwith other police officials had put picketing at main chowk, Fagu, at about 12:05 a.m.

9.2 In the meanwhile, vehicle No.HP-09C-4077, being driven by its driver, reached at the place of picketing. Apart from the driver, another person was also found sitting in the car. On inquiry, the driver of the vehicle disclosed his name as Parth, S/o Rajinder Singh, Vill Gallu, P.O. Phagu, Tehsil Theog, District Shimla, H.P., and the other person disclosed his name as Naresh Kumar. Both of them were apprised about the secret information and associated them in the raiding party, as independent witnesses.

9.3 At about 12:30 a.m., vehicle bearing No. HR-04K-0225, being driven by its driver, reached at the spot fr