The main legal point established in the judgment is the adverse inference against the prosecution due to the absence of the material witness and the implications of Section 37 of the NDPS Act in granting bail.

JUDGMENT

Jasgurpreet Singh Puri, J. (Oral) - The present petition has been filed under Section 439 of the Code of Criminal Procedure for the grant of regular bail to the petitioner in FIR No.274 dated 04.12.2018, under Section 22 of the NDPS Act, 1985, registered at Police Station Kotwali, Kapurthala.

2. It has been submitted by the learned counsel for the petitioner that the petitioner is in custody since 29.03.2022. He submitted that it is a case where as per the prosecution story, the police party was patrolling and they saw the petitioner, who on looking at the police party threw away the packet from his right pocket and thereafter the packet was confiscated in which 20 injections of Buprenorphine were recovered containing 2 ml each. He submitted that thereafter since the FSL report did not come, the petitioner was released on interim bail by the learned Trial Court. He submitted that the petitioner, while on interim bail, was never informed with regard to the fact that the FSL report has come and thereafter when the FSL report was filed alongwith challan, the petitioner was absent because he was not taken for the purpose of submitting the challan. He submitted that the petitioner was in custody in some other case and thereafter when the case was taken up for consideration on framing of charges on 29.03.2022 he was produced on the basis of production warrant pertaining to some other case and that is why his total custody is about 10 months and 3 days. He has submitted that although the petitioner is involved in some other cases pertaining to small quantity under the NDPS Act but so far as the present case is concerned, the petitioner is entitled for the grant of bail on various grounds. Firstly, the alleged confiscation was of 20 injections of Buprenorphine of 2 ml each which comes to total of 40 ml, which is slightly higher than the commercial quantity under the NDPS Act. But since the petitioner was carrying the injections of Buprenorphine for medical purposes and for that purpose prescription is not required, he is covered under Rule 66 of the NDPS Rules and for that purpose, he is not required to have any medical prescription in this regard. He also relied upon a judgment of this Court in Sukhwinder Singh @ Vicky v. State of Punjab 2021 (1) RCR (Crl.) 177 in this regard. Secondly, the alleged 20 injections of Buprenorphine were recovered from the ground even as per the prosecution story but thereafter the petitioner was searched personally also by ASI Rajinder Kumar, who was called by the other ASI namely Tarsem Singh, who had stopped the petitioner. He referred to Annexure P6 to state that although he was searched personally but the provisions of Section 50 of the NDPS Act were not complied since no offer was given to the petitioner for being searched either by a Magistrate or a Gazetted Officer. Thirdly, the charges in the present case were framed on 29.03.2022. Thereafter, the matter was adjourned from time to time for summoning of the prosecution witnesses but they failed to depose before the learned trial Court. During the course of arguments, learned counsel for the petitioner has supplied photocopies of the zimini orders which were passed by the learned trial Court after the framing of the charges. The charges were framed on 29.03.2022 and the matter was adjourned to 19.04.2022 and on that day, no PW was present. It was again adjourned to 10.05.2022 and it was observed by the learned trial Court that no PW is present and even the petitioner was not produced by the jail authorities, therefore, fresh summons were issued to the unexamined PWs and the matter was adjourned to 14.06.2022 and again the petitioner was not produced by the jail authorities and no PW was present. Therefore, again fresh summons were issued to the un-examined PWs. Thereafter the matter was adjourned to 05.07.2022 and on that date again no PW was present and the petitioner was not produced by the jail authorities. The learned trial Court observ