Advocates:
Advocate Appeared:
For the Appellant :Mr. Mohan Singh Rana, Advocate
For the Respondent: Mr. Rajiv Goel, DAG, Haryana.

JUDGMENT :

Jasjit Singh Bedi, J. 

The prayer in the present petition under Section 439 Cr.P.C is for the grant of regular bail to the petitioner in case bearing FIR No.346 dated 09.08.2022 under Sections 22-C and 29 of the NDPS Act, 1985 and Sections 3, 4 and 5 of the Medical Termination of Pregnancy Act, 1971 registered at Police Station Chandhut, District Palwal.

2. The brief facts of the case are that one Hari Lal @ Harish (petitioner), owner of Diksha Medical Store was apprehended with his car was found containing 2460 tablets of Alprasafe, 103 Ampoules, Tramwel Injection of 2 ml each, 134 Ampoules, Perizocine Injection and 180 tablets of Ativan besides other drugs.

3. The arrested accused made a disclosure statement naming one Sonu (since granted bail vide order dated 03.05.2023 passed in CRM-M-21322-2023, Annexure P-3), resident of Aligarh and Sanjay Kumar, resident of Kosi Kalan (U.P.). Accused-Sonu was arrested on 12.09.2022 and disclosed that he had procured the drugs from Yogender Kumar @ Pankaj (since granted bail vide order dated 09.05.2023 passed by the Additional Sessions Judge, Palwal, Annexure P-4), resident of Aligarh.

Accused-Yogender Kumar @ Pankaj was arrested on 14.09.2022 and disclosed the name of Bani Singh (since granted bail vide order dated 20.03.2024 passed in CRM-M-21749-2023) from whom he procured the drugs.

On 15.09.2022, Bani Singh was arrested with 08 boxes of Pentazocine injections (total 800 injections) and 08 boxes of Proxymed-Spas Capsules (total 1920 capsules) and a scooty bearing No.UP 81CP 7742. He disclosed the name of his procurer as Tinku.

4. On conclusion of the investigation qua accused Hari Lal @ Harish, Sonu, Yogender Kumar @ Pankaj and Bani Singh, the report under Section 173(2) Cr.P.C. was submitted to the Trial Court on 31.03.2023.

5. The learned counsel for the petitioner contends that the petitioner has been falsely implicated in the present case. The mandatory provisions of Sections 42 and 50 of the NDPS Act had not been complied with in their proper perspective. No independent witness was joined at the time of search and seizure. As he was a first-time offender, in custody since 09.08.2022 and only 04 out of the 26 prosecution witnesses had been examined so far, the trial of the present case was not likely to be concluded anytime soon and therefore, he was entitled to the concession of bail in view of the judgment of the Hon'ble Supreme Court in the case of Nitish Adhikary @ Bapan Versus The State of West Bengal, SLP (Crl.) Nos.5769/2022 arising out of judgment and order dated 04.05.2022 in CRM(NDPS) No.442/2022, decided on 01.08.2022 and Hasanujjaman & others Versus The State of West Bengal, SLP (Crl.) No.(s).3221/2023 arising out of impugned final judgment and order dated 29.11.2022 in CRM(NDPS) No.1323/2022, decided on 04.05.2023,.

6. On the other hand, the learned State counsel contends that commercial quantity of contraband had been recovered from the petitioner. Therefore, in view of the bar contained under Section 37 of the NDPS Act, the petitioner was not entitled to the grant of bail. He, however, concedes that the petitioner was a first time offender, in custody since 09.08.2022 and only 04 of the 26 prosecution witnesses had been examined so far.

7. I have heard the learned counsel for the parties.

8. The Hon'ble Supreme Court in the case of Nitish Adhikary @ Bapan Vs. The State of West. Bengal SLP Crl.)Nos.5769/2022 Decided on 01.08.2022 held as under:-

"As per the office report dated 29.07.2022, copy of the show cause notice along with Special Leave Petition was supplied to the Standing Counsel for the State of West Bengal and separate notice has been served on the State also. However, no one has entered appearance on their behalf.

The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS 2 Act, registered at Police Station Bongaon, West Bengal.

During the course of the hearing, we are informed that the pe