Point of Law: NDPS Act – Grant of Bail – Applicant not actively participant in offence – Contraband not recovered from his possession and having no criminal antecedent – Entitle for bail.

JUDGMENT :

1. They are heard. Perused the case diary /challan papers.

2. This is the first application under Section 439 of Criminal Procedure Code, 1973, as he is implicated in connection with Crime No.84/2021 registered at Police Station Daloda, District Mandsaur (MP) for offence punishable under Sections 8/15, 29 of the N.D.P.S. Act.

3. The applicant is in custody since 02.03.2021.

4. The allegation against the applicant is that he is also involved in the aforesaid case wherein 67 Kg. of poppy straw has been seized from the possession of co-accused Mukesh, whereas 23 Kg. of poppy straw has been seized from the Dhaba in which the applicant was working as a servant.

5. Counsel for the applicant has submitted that he is only a salaried employee of the main accused Mohammad Shafiq and had no active participation in the offence and it was further submitted that 23 Kg of poppy straw has also not been seized from the possession of the present applicant and he has no criminal antecedent. The applicant is an employee of Dhaba and has been falsely arraigned in the case only on the basis of a memorandum under Section 27 of the Evidence Act, 1872 prepared at the instance of the co-accused. He is in jail since 02.03.2021. Investigation is complete. Charge-sheet has been filed. Final conclusion of trial is likely to take sufficient long time. Therefore, the applicant be released on bail.

6. Counsel for the respondent/State, on the other hand, has opposed the prayer and submitted that the applicant is arraigned on the basis of memorandum under Section 27 of the Evidence Act.

7. After considering the rival submissions made by the learned counsel for the parties and going through the case diary and the fact that 23 Kg. of poppy straw has not been seized from the active possession of the applicant and has been seized from the Dhaba, where he was working and has no criminal antecedent and the final conclusion of the trial is likely to take sufficient long time so also the fresh spread of Covid-19, this Court finds it expedient to allow the present bail application.

8. Accordingly, without commenting on the merits of the case, the application filed by the applicant is allowed. The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs.1,00,000/-(Rupees One Lakh Only) with one solvent surety of the like amount to the satisfaction of the trial Court for his regular appearance before the trial Court during trial with a condition that he shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973.

9. It is also observed that if the applicant is found to be involved in any criminal activities, after his release on bail, then the present bail order shall stand cancelled without further reference to this Court; and the State / prosecution will be free to arrest the accused in the present case also.

10. This order shall be effective till the end of the trial, however, in case of bail jump, it shall become ineffective.

11. Certified copy as per rules.