The main legal point established in the judgment is the admissibility of evidence, the conditions for granting bail in non-bailable offences, and the discretion of the court to impose specific terms and conditions for bail.

JUDGMENT :

Anoop Chitkara, J.

1. The petitioner, allegedly a poppy addict, apprehending arrest for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR captioned above had come up before this Court under Section 438 CrPC seeking anticipatory bail. Vide order dated 25-10-2021, this court had granted interim bail to the petitioner.

2. In paragraph 18 of the petition, it is declared that the accused has no criminal history. Even none of the status reports mentions about any criminal antecedents.

3. Ld. Counsel for the petitioner contends that the petitioner has been nominated on the basis of the disclosure statement of the main accused, and such statement is legally inadmissible.

4. Ld. Counsel appearing for State opposes the bail and submits that quantity involved is commercial and grant of bail encourages the drug peddlers, and the drug menace is spreading day by day.

REASONING :

5. The quantity allegedly involved and recovered from the main accused is 150 kg of poppy husk. As per entry no. 110 of the table specifying small and commercial quantities, quantity greater than 50 kg of poppy straw falls in commercial category and lesser than 1 kg as small. Thus, the quantity allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case.

6. The status report filed by the police reveals that the investigator arraigned the petitioner as an accused based on the disclosure statement of the main accused from whose possession the investigator had recovered the contraband. There is no other evidence collected at this stage to connect the petitioner with the main accused. Merely because the police want to know the source of poppy and thus seek custodial investigation is not justiciable because the evidence linking the petitioner is prima facie, not admissible given the express bar placed by legislator under section 25 of Indian Evidence Act, 1872. Thus, there is no justification to deny bail. Consequently, the petitioner has satisfied the first rider of section 37 of the NDPS Act at this stage.

7. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh when considering the question of jail. So also, the heinousness of the crime. In Gudikanti Narasimhul