The court held that the provisions of Section 37 of the N.D.P.S. Act do not apply as the recovered quantity of Heroin is not commercial, allowing bail based on the applicant's history and lack of substantial evidence.

JUDGMENT :

Sameer Jain, J.

1. Supplementary affidavit filed today on behalf of the applicant is taken on record.

2. Heard Sri Prateek Mishra, learned counsel for the applicant and Sri Imran Khan, learned AGA for the State.

3. The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 231 of 2024, under Sections 8/21 N.D.P.S. Act, Police Station Vindhyachal, District Mirzapur during pendency of the trial.

4. As per prosecution from the possession of applicant 72 gram Heroin was recovered.

5. Learned counsel for the applicant submitted that on the basis of false allegation, applicant has been made accused in the present matter and actually nothing incriminating was recovered from his possession.

6. He further submits, even as per prosecution, 72 gram Heroin was recovered which is not the commercial quantity, therefore, provisions of Section 37 of N.D.P.S. Act are not applicable in the present matter.

7. He further submits, however, apart from the present case applicant is having criminal history of five other cases and out of five cases he is having criminal history of three cases of N.D.P.S. Act but in all the three cases he has been released on bail and in all the three cases he has been made accused on the basis of recovery of meager quantity of contraband and this fact suggests that police is highly inimical with applicant and implication of the applicant in the present matter is the outcome of the above enmity.

8. He further submits, in the present matter applicant is in jail since 30.11.2024.

9. Per contra, learned AGA opposed the prayer for bail but could not dispute the argument on facts advanced by learned counsel for the applicant.

10. I have heard learned counsel for the parties and perused the record of the case.

11. As per allegation from the possession of applicant 72 gram Heroin was recovered and considering the fact that alleged recovered Heroin does not involve the commercial quantity, the argument advanced by learned counsel for the applicant that provisions of Section 37 of N.D.P.S. Act are not applicable in the present matter, cannot be brushed aside.

12. Further, however, apart from the present case applicant is having criminal history of three other cases of N.D.P.S. Act but in all the three cases he is on bail and it appears, in all the three cases he has been made accused on the basis of meager quantity of contraband and therefore, argument advanced by learned counsel for the applicant that police is highly inimical with the applicant and due to previous criminal history applicant has been made accused in the present matter, cannot be ruled out.

13. Further, in the present matter applicant is in jail since 30.11.2024.

14. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

15. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

16. Let the applicant-Santosh Jaiswal @ Setti be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

17. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

18. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observat