The court granted bail based on insufficient evidence linking the petitioner to the contraband and the potential for evidence tampering, emphasizing the need for a fair trial.

                                                                                                                                         Order

24/01/2025

This application for bail under Section 483 of BNSS has been filed by the petitioner who has been arrested in connection with F.I.R. No.409/2024 registered at Police Station Kotwali Nimbahera, District Chittorgarh, for offences under Sections 8/18 and 8/29 of the NDPS Act.

Learned counsel for the petitioner submitted that the co- accused Bhawani Singh (S.B. Cr. Misc. Bail Application No.12169/2024) from whose conscious possession, contraband opium weighing 07.508 Kgs. was recovered, has already been enlarged on bail by a coordinate Bench of this Court vide order dated 07.10.2024. Learned counsel submitted that as per the prosecution, the recovered contraband was procured by the co- accused Bhawani Singh from the present petitioner. Learned counsel submitted that apart from the disclosure statement of the co-accused Bhawani Singh, there is no other material/evidence available on record indicating involvement of the present petitioner in commission of the alleged crime.

Learned counsel submitted that the petitioner is in judicial custody; no case of similar nature is pending against him and the trial of the case is likely to consume sufficiently long time. On these grounds, he implored the Court to enlarge the petitioner on bail.

Per contra, learned Public Prosecutor has opposed the bail application and submitted that looking to the seriousness of allegation against the petitioner, he does not deserve to be enlarged on bail. However, he was not in position to refute the fact that the contraband greater than commercial quantity was not recovered from the present petitioner. He was also not in a position to refute the fact that the co-accused Bhawani Singh from whose conscious possession contraband above commercial quantity was recovered, has already been enlarged on bail by a coordinate Bench this Court.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

The order dated 07.10.2024 is reproduced herein below for ready reference:

“1. The applicant is under arrest in connection with crime registered pursuant to F.I.R. Number 409/2024 of Police Station Kotwali Nimbahera, District Chittorgarh, in respect of offence punishable under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985. He has approached this Court by way of this application for bail under Section 483 of BNSS (Section 439 of old Code).

2. I have considered the rival submissions made by learned counsel for the applicant as well as learned public prosecutor and perused the record.

3. Learned Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicant and submitted that 07.508 Kgs. of contraband Opium recovered from the applicant falls within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. He further submits that the seizure and sampling was in consonance with the procedure and the shortcomings pointed out by the learned counsel for the petitioner cannot be considered at this stage and are to be decided after trial only. It is further argued that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner indulges in illegal trade of narcotics; that the petitioner does not deserves any sympathy as the petitioner is a drug peddler. He thus, craves rejection of the applicant's bail application.

4. I have given my anxious consideration to the rival submissions with reference to material placed before me.

5. On perusal of the record and upon consideration of the submissions, it would be prima facie clear that as per the admitted case of the prosecution, petitioner was already in police custody under Sections 126 a