The central legal point established in the judgment is the application of bail laws under Section 497 Cr.P.C. and Section 37 of the NDPS Act, considering the quantity of contraband found and the presumption of innocence.

1. Through the medium of instant bail application, petitioner namely Zoravar Singh S/o Baldev Singh seeks grant of bail in FIR No.49/2017 dated 14.06.2017 under Section 8/21/22 of NDPS Act registered with Police Station Lakhanpur.

2. In the bail application, it has been averred that the respondent has registered FIR No.49/2017 under section 8/21/22 of NDPS Act against the petitioner and petitioner is in custody of police since more than 1 1/2 years. It is further stated that the allegation leveled against the petitioner is that while he was driving a motorcycle with another person Parvez Ahmed Bhatt sitting on the back seat, the naka party of the police station at Basholi Morh stopped the motor cycle and made search in the pockets of motorcycle riders and 20 gms substance (heroin) is alleged to have been recovered from the pocket of petitioner and 30 gms (heroin) from the pocket of Parvez Ahmed Bhatt. The searching party comprised of constables and an ASI. The recovered material is said to have been packed in sealed covers by the police officials after taking one mg each out of the material recovered from the pockets of the petitioner and Parvez Ahmed for chemical examination. Report of the J&K Forensic Science Laboratory Jammu dated 30.06.2017 shows the detected material as “Diacetyl Morphine”.

3. It is further stated in the application that all the ten witnesses mentioned in the final report are police officials and one Naib Tehsildar, out of these, statements of four have been recorded. Trial Court has granted bail in favour of the co-accused Parvez Ahmed Bhatt and the bail application bearing No.36/2017 dated 27.12.2017 moved by the petitioner before the learned trial Court has been rejected on 11.05.2018 on the ground that though the material shown to have been recovered from the petitioner is just 20 gm yet it is stated in the order that there was some earlier FIR against the petitioner in the same police station, the trial of which is yet not concluded. It is stated that the denial of bail to the petitioner is discriminatory violating his rights under Articles 14 & 21 of the Constitution of India.

4. In the application, it is also stated that the petitioner is a young man of 37 years having wife and five years kid. There is no earning member in the family to look after and feed them. The petitioner is in custody for the last about 1 1/2 years. The quantity shown to have been recovered from the petitioner is not a commercial quantity. The petitioner has been implicated in false and fabricates case by the respondent as is evident from record that all search, packing and sealing have been carried out by incompetent persons. Lastly, it is prayed that the petitioner be granted bail.

5. Objections stand filed on behalf of respondent-State stating therein that the present application seeking concession of bail in FIR No.49/2017 is grossly misconceived both in law as well as on facts, as such, deserves outright dismissal. Present application seeking bail in the afore said FIR, which has culminated into presentation of challan on 27.07.2018, is also not maintainable because in view of the categoric finding recorded by the learned Sessions Judge Kathua regarding the petitioner being habitual offender of the offence under NDPS Act and already booked in FIR No.30/2016 for the same offence and no satisfaction as required under Section 37(1)(ii) can be arrived about the petitioner for not committing the same offence while on bail as prayed for. In the objections, it is further submitted that the petitioner seeking bail on the parity of co-accused is not maintainable because in law mere grant of bail to the co-accused does not ipso facto create any right to the petitioner for seeking bail, more so when admittedly and in light of the observation of learned Sessions Judge, Kathua, the petitioner has failed to make out same case to that of the co-accused. With these submissions, learned State counsel has prayed for dismissal of the