Reasonable grounds for believing the accused is not guilty and is not likely to commit an offense while on bail are essential for granting bail under the NDPS Act.

JUDGMENT :

SUBHASH VIDYARTHI, J.

1. Heard Sri Daya Shankar Mishra, Senior Advocate assisted by Shri Chandrakesh Mishra Advocate, the learned Counsel for the applicant and Sri Ashish Pandey Advocate, the learned counsel for the Narcotic Control Bureau.

2. The present application has been filed for release of the applicant on bail in N.C.B. Crime No. 28 of 2021, under Section 8(C)/21/29 of Narcotic Drugs and Psychotropic Substances Act, P.S. N.C.B. Lucknow.

3. The search, seizure-cum-recovery memo dated 04-07-2021 states that an information was received in the N.C.B. Office at Lucknow on 03-07-2021 at 21:30 hours that a person was carrying Heroin in Coach No. 9 of Train No. 02357 from Gaya, Bihar to Bareilly, U.P. and the train would reach Bareilly junction on 04-07-2021 between 06:00 hours to 07:00 hours. In furtherance of the aforesaid information, a team of Officers of N.C.B consisting of the Intelligence Officer Mohd. Farooq, Supervision Assistant Vivek Kumar, Hawaldar Hridesh Kumar and Driver Brijesh Kumar was constituted. The team assembled in its office at Lucknow and started its journey on 03-07-2021 at 22:30 hours from Lucknow office and reached Bareilly junction on 04-07-2021 at about 05:00 hours. No person agreed to become a witness to the proposed seizure proceedings. The Inspector R.P.F. junction was requested to provide independent witnesses, who deputed two constables of R.P.F. to act as witnesses.

4. When the train reached Bareilly junction, the N.C.B. team apprehended the applicant and from a bag kept near him about 300 gms. brown coloured narcotic powder kept in a white transparent polythene was recovered. However, in personal search of the applicant, no objectionable substance was recovered. Upon testing the narcotic substance with a Drug Detection Kit, it was found to be Heroin. The NCB team conducted a repeat test with the kit and in that also, the substance was found to be Heroin. It is alleged that the applicant also told that the substance was Heroin. It’s gross weight along with the double white transparent polythene in which it was packed, was found to be 391 gms.

5. The seizure memo contains a narration that the seizure proceedings commenced on 04-07-2021 at 07:45 hours and continued till 12:20 hours, the seizure memo consisting of four pages was prepared, read over to the applicant and it was signed by the Intelligence Officer, NCB, Lucknow, the Inspector R.P.F., the witnesses and the applicant.

6. The applicant filed an application for being released on bail before the learned Additional Sessions Judge/Special Judge, N.C.B., Bareilly, which was rejected by means of an order dated 04-09-2021 on the ground that commercial quantity of Heroin was recovered from his possession in presence of the witnesses.

7. In the affidavit filed in support of the bail application it has been stated that the applicant is innocent and he has been falsely implicated in the present case and that nothing was recovered from him. It has also been stated in the affidavit that the applicant does not have any criminal history.

8. A counter affidavit has been filed on behalf of the N.C.B. in which it has been stated that the substance found in the bag of the applicant was tested with the help of the DD Kit and as per the test report the substance was Heroin. It’s net weight was found to be 358 gms and gross weight was 391 gms and the statement of the applicant was recorded and he confessed that he was carrying Heroin to be delivered to a person as per the instruction of his cousin Manish Kumar.

9. In paragraph 15 of the counter affidavit it has been stated that a sample of the seized contraband substance was sent to the Government Laboratory and after chemical examination, the Chemical Examiner submitted a report stating that the sample under reference answered positive test for Heroin.

10. A rejoinder affidavit and a supplementary rejoinder affidavit have been filed on behalf of the applicant and a copy of the test report dated 09-11-2021