Point of Law: High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Section 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order

JUDGMENT :

DINESH KUMAR SINGH, J.

1. This bail application under Section 439 Cr.P.C. has been filed seeking bail in FIR No. 0337 of 2020 under Section 8/20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short N.D.P.S. Act), Police Station Antoo, District Pratapgarh.

2. As per the prosecution story, on 16.07.2020, the Station House Officer, Mr. Manoj Kumar Tiwari, Police Station Antoo, Pratapgarh along with other members of his team was checking suspicious vehicles and wanted criminals. He received an information/input from in-charge S.O.G. that some illegal articles were suspected to be delivered in the area of the police station under his jurisdiction. On this information, checking points were alerted and the personnel posted there, were directed to check vehicles with alertness and alacrity. On specific inputs regarding two vehicles, the police party reached at the place where these vehicles were parked and, some articles were being downloaded from truck. The police party noticed that sacks were being transferred from truck to dicky of the car standing there. These vehicles were encircled by the police team and five people present in those vehicles who tried to flee away, were apprehended. One of them was the present accused-applicant and from his possession, Rs. 7,000/- was recovered. From other accused also money was recovered. In the truck bearing Reg. No. UP-44-AT-1312, sacks filled with narcotic substance were found. Similarly, in the dicky of the Car No. UP-32-LL-8788 KIA SELTOS, two sacks of white color filled with some substance were found. The accused accepted that sacks were having Marizuana/Ganja.

3. All five persons including the accused-applicant were taken in custody at 7:30 P.M. and were made aware of their rights under Section 50 of the N.D.P.S. Act. They were asked to go with the police party before the Gazetted Officer for their personal search. However, these persons did not respond. Since, it was a large quantity of Marizuana/Ganja which was found in two vehicles, the circle officer was informed who came on the spot and in his presence and directions truck and car were searched in accordance with law. Some of the sacks were opened, and it was found that the substance inside the sack was smelling like Marizuance/Ganja.

4. On investigation, the accused-applicant told the police that he had been bringing Marizuance/Ganja from Korapur, Vishakhapatnam in trucks ferrying coal with the help of these persons taken in custody. Total contraband recovered from the truck and the car was 1,606.8 Kg which was stacked in 48 sacks. Samples from all the sacks were collected. The market value of the contraband recovered was more than two crores. Out of 48 sacks, 3 sacks were recovered from the dicky of the car. The truck in question belongs to the father of co-accused-Ravi Yadav and the car was of the present accused-applicant.

5. Heard Mr. H.G.S. Parihar, Senior Advocate assisted by Ms. Minakshi Singh Parihar, learned counsel for the accused-applicant and Mr. Rao Narendra Singh, learned A.G.A. for the State.

6. It has been submitted on behalf of the accused-applicant that the accused-applicant was arrested on 15.07.2020 but his arrest was shown on 16.07.2020. In Para 8 of the affidavit filed in support of the bail application this fact has been specifically mentioned. There is no specific denial to this averment in the counter affidavit filed by the State. It has further been submitted that charge-sheet has been filed in the case. The accused-applicant has no concern with the case and recovery allegedly made from the car of the accused-applicant is a false recovery. It has been also submitted that charge-sheet has been submitted without Forensic Science Laboratory's report of the contraband allegedly recovered form the possession of the accused-applicant. The accused-applicant has criminal history of three cases which are mentioned in Para 28 of the affidavit as hereunder:-

(i) Case Crime No. 470 of 2009 under Se