JUDGEMENT

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking regular bail in FIR No. 41/2022 dated 26.12.2022, registered at Police Station Sarai Rohilla, for offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). Chargesheet has already been filed against the applicant for the offence under Section 18 of the BAIL APPLN. 3124/2023 NDPS Act.

2. It is alleged that on 26.12.2022, on the basis of secret information, the applicant and co-accused Ravinder were intercepted at the Shakur Basti Railway Station.

3. It is alleged that the applicant was holding a saffron gamchha (towel) in which some heavy items were tied in a knot. It is alleged that on checking, it was found that the towel had two transparent polythene bags. It is alleged that a total of 2.330 Kg of Opium was recovered from the same.

4. It is alleged that co-accused Ravinder had a white bag in his hand which also had two transparent polythene bags in it. It is alleged that 3.086 Kg of Opium was recovered from the said polythene bags.

5. It is the prosecution’s case that the accused persons stated in their disclosure statements that they used to work as labourers, however, they did not earn enough to fulfill their requirements They stated that they had been tasked to deliver the contraband to a man in Bathinda, Punjab by one person, namely, Vinod Paswan. It is alleged that Vinod Paswan had given the contraband to the accused persons on 25.12.2022 near Bus Stand of Hunter Ganj, Jharkhand. Thereafter, the accused persons had travelled to Delhi where they were intercepted by the police officials.

6. The bail application filed by the present applicant before the learned Trial Court was dismissed on 06.07.2023.

7. The learned counsel for the applicant submitted that the applicant has deep roots in the society and has clean antecedents.

BAIL APPLN. 3124/2023

8. She submitted that the applicant is the sole bread earner in his family consisting of his wife, ailing mother and his two daughters.

9. She submitted that the investigation in the present case is complete and chargesheet has been filed, however, the charges are yet to be framed. She stated that the prosecution has named 15 witnesses and the trial is not likely to be completed in near future.

10. She submitted that the search and seizure, in the present case, is also riddled with anomalies wherein the search and seizure of the contraband took place in the absence of any public witnesses.

11. She submitted that the contraband allegedly recovered from the applicant is of intermediate quantity and thus the rigors of Section 37 of the NDPS Act are not attracted in the present case.

12. Per Contra, the learned Additional Public Prosecutor (‘APP’) for the State opposed the grant of any relief to the applicant in the present matter and submitted that the allegations against the applicant are serious in nature since commercial quantity of illegal substance (Afeem) weighing 5.416 Kg has been recovered from the applicant and the co-accused person.

13. He submitted that in the present case the recovery has been effectuated directly from the applicant.

ANALYSIS

14. It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the BAIL APPLN. 3124/2023 accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened;

etc. However, at the same time, period of incarceration is also a relevant factor that is to be considered.

15. It has been argued by the learned counsel for the applicant that the bar under