Substantial custody and arguable points in the case are crucial factors for granting bail under the NDPS Act.

JUDGMENT

Vikas Bahl, J. (Oral) - CRM-14855-2022

1. Allowed as prayed for.

2. Annexures P-3 and P-4 are taken on record subject to all just exceptions.

Main Case

3. The present petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case FIR No. 73 dated 19.06.2020 under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 registered at Police Station STF Phase-4, District SAS Nagar.

4. Learned counsel for the petitioner has submitted that in the present case, it is not specifically stated in the FIR as to from whom the recovery of 615 gms. of Heroin has been effected. It is further submitted that the petitioner has been in custody since 19.06.2020 and the challan has already been presented and there are as many as 15 witnesses, none of whom have been examined as yet and thus, the trial is likely to take time. It is also submitted that in the present case, there is non compliance of Section 42 of the NDPS Act inasmuch as, the secret information had been taken down by ASI Jaipal Singh whereas the same has been sent by Naresh Kumar and not by ASI Jaipal Singh. A reference has been made to Section 42 (2) to contend that the phrase 'he shall within 72 hours send a copy thereof to the immediate official superior' would indicate that it is the person who had taken down the writing who ought to send the information taken down to the senior officer and thus, there is noncompliance of Section 42 in the present case. It is further submitted that the petitioner is not involved in any other case.

5. Learned State counsel, on the other hand, has opposed the present application for regular bail and has submitted that in the present case, there is complete compliance of Section 42 of the NDPS Act inasmuch as, ASI Jaipal Singh had taken down the information and then forwarded the same to Naresh Kumar, who was also working in Special Task Force, Ludhiana and sent it to the higher officer and thus, the intent of Section 42 has been complied with. It is further submitted that the said Naresh Kumar is the Investigating Officer in the present case.

6. This Court has heard learned counsel for the parties and has perused the paperbook.

7. The petitioner has been in custody since 19.06.2020 (more than 1 year and 11 months) and the challan in the present case has been presented and there are as many as 15 prosecution witnesses out of whom, none have been examined yet and thus, the trial is like to take a time. The petitioner is stated to be the pillion rider of the motorcycle and is also stated to be not involved in any other case. The question whether Section 42 of the NDPS Act has been complied with or not in the present case would be a matter of debate, which would be finally adjudicated during the course of trial.

8. A co-ordinate Bench of this Court in a detailed judgment titled as Ankush Kumar @ Sonu v. State of Punjab reported as 2018 (4) RCR (Criminal) 84, had considered the provision of Section 37 of the NDPS Act in extenso and had granted bail in a case which involved commercial quantity. The relevant portion of the said judgment is reproduced as under:

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But, so far as second part of Section 37 (1) (b) (ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit 'any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit 'any offence' or 'offence under NDPS Act' after being released on bail, then this court, also, does not have any reasonable ground to be satisfied that the petitioner