The absence of recovery from the accused and the quantity of the alleged drug are crucial factors in considering the grant of anticipatory bail under the NDPS Act.

JUDGMENT :

Vikas Bahl, J.

1. Prayer in the present petition is for grant of anticipatory bail to the petitioner in FIR No.181 dated 19.11.2021 registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Section 29 of the NDPS Act has been added later on) at Police Station City-1 Mansa, District Mansa.

2. Learned counsel for the petitioner has submitted that in the present case, no recovery has been effected from the petitioner and the petitioner has solely been implicated on the basis of disclosure statement made by the co-accused Karan Singh from whom the alleged recovery of 20 grams of heroin, which is non-commercial quantity, has been recovered. Learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu, reported as 2021(1) RCR (Criminal) 1, an order passed by Coordinate Bench of this Court dated 17.06.2020 in CRM-M-12051- 2020 titled “Mewa Singh Vs. State of Punjab”, and an order of another Coordinate Bench dated 16.07.2021 passed in CRM-M-12997-2020 titled as “Daljit Singh Vs. State of Haryana” to contend that in such like cases if a person has only been proceeded against on the basis of disclosure statement of co-accused and no recovery has been effected from the petitioner, then he should be granted the benefit of anticipatory bail.

3. Notice of motion.

4. On advance notice, Mr. Sarabjit S. Cheema, AAG, Punjab, appears and accepts notice on behalf of the State and has submitted that he is fully prepared to argue the matter and assist this Court. He has opposed the present petition for grant of anticipatory bail to the petitioner and has submitted that the petitioner is involved in two other cases.

5. Learned counsel for the petitioner, in rebuttal to the abovesaid argument, has submitted that in the first case, i.e. FIR No.146 dated 17.09.2021, the petitioner was also involved on the basis of statement made by the co-accused and even from the said co-accused, non-commercial quantity of Heroin was recovered i.e. 15 grams and in the said case, notice of motion had already been issued and the interim protection had also been granted. It is further argued that even with respect to the second case, the petitioner has been released on regular bail and the alleged recovery was only of 7 grams of heroin, which is very close to the small quantity as stipulated i.e. 5 grams. He has also placed reliance upon the judgment of Hon'ble Supreme Court in “Maulana Mohd. Amir Rashadi vs. State of U.P. and another”, reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in another case. The relevant portion of the said judgment is reproduced hereinbelow:-

“As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.”

6. This Court has considered the arguments raised by learned counsel for the parties and has perused the paper book.

7. It is not in dispute that no recovery has been effected from the petitioner and the petitioner is sought to be implicated solely on the basis of disclosure statement of co-accused namely, Karan Singh. Even from the said Karan Singh, recovery of 20 grams of Heroin has been effected, which is far less than the commercial quantity, as the commercial quantity of heroin is 250 grams.

8. A Coordinate Bench of this Court in Mewa Singh's case (Supra) had passed the following order:-

“1. The petitioner has approached this Court seeking grant of anticipatory bail in a case registered against him vide FIR No.133 dated 24.11.2019 under Section 21 NDPS Act Police Station Lohi