JUDGMENT

1. The petitioner filed present bail application under section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) for grant of regular bail in FIR bearing No. 899/2020 dated 04.11.2020 registered under sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”).

2. The brief facts of the case are that on 04.11.2020 at around 2:00 PM in the afternoon, the petitioner alongwith co-accused Pankaj Giri was apprehended by the patrolling police on the Kanjhawala link road, Stone Market, Mangol Puri. The petitioner and co-accused were found to be carrying 22 kg and 81 kg of ‘ganja’ respectively. The petitioner found to be carrying 22 kg of ‘ganja’ on a TVS Scooty bearing no. DL11SW2226 and was pushing the rickshaw from behind with his leg which was being driven by the co-accused Pankaj Giri carrying 81 kg of ‘ganja’. The petitioner and co-accused Pankaj Giri were arrested. The charge-sheet was filed after completion of investigation under section 20 of NDPS Act on 15.04.2021 in the court of ASJ/Spl Judge, Rohini Courts, New Delhi. The cognizance was taken. The petitioner and co-accused @Pankaj Giri are in judicial custody.

3. The petitioner in bail application stated that earlier bail application under section 439 of the Code was dismissed by the Court of Shri Rakesh Kumar- IV, Additional Sessions Judge, Special Judge (NDPS), North West District, Rohini Court, Delhi vide order dated 25.07.2022 on the grounds that commercial quantity i.e 22 kg ‘ganja’ is recovered from possession of the petitioner. The commercial quantity which was stated to be recovered was sent to FSL for forensic examination and result of which was “On physical, microscopic, chemical & TLC examination, exhibits R-1, R-3 & R-5 were found to be ‘ganja’.

3.1 The petitioner earlier moved an application under section 482 of the Code read with section 439 of the Code bearing no. 2399/2022 for grant of interim bail for a period of 90 days on the ground that his wife is experiencing abdominal pain, bleeding per vaginum and irregular menstrual cycles and due to which, she requires surgical intervention. This Court vide order dated 02.09.2022 granted interim bail for a period of 20 days w.e.f. 10.09.2022 to 29.09.2022 (both days inclusive) on furnishing a personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the concerned trial Court subject to the conditions.

3.2 As per the charge-sheet the petitioner and co-accused Pankaj Giri were carrying two white sacks and when they were stopped by the special staff/outer district and enquired about the sacks, the petitioner and co-accused Pankaj Giri, did not answer properly and thereafter they were thoroughly checked. The substance/material stated to be found in two sacks was appearing to be Tobacco like substance and after being weighed, it turned out to be 22 kg in scooty and two sacks which were in rickshaw weighing 40 and 41 kg each. Thereafter, the samples of the seized material was sent to FSL for examination, the results of FSL was that the sacks contain ‘ganja’.

4. The respondent/State filed the Status Report dated 07.10.2022 under the signature of Insp. Ajmer Singh, Special Staff/Outer District Delhi wherein it is mentioned that the petitioner had procured the recovered contraband from Rakesh resident of Mathura UP. The petitioner during the investigation was found to be the owner of the ‘ganja’ and other co-accused Pankaj Giri was working as a carrier to the petitioner. The petitioner did not co-operate in the investigation regarding source of the drug. It is stated in the Status Report that the present bail application be dismissed

5. The counsel for the petitioner argued that the petitioner cannot be held liable for offences as the story of the prosecution is false and the substance which was stated to be found is not ‘ganja’ according to section 2 of the NDPS Act. It is to be noted that