Once a prima facie case is established under the NDPS Act, courts cannot grant bail unless strict statutory conditions are met, regardless of direct evidence of possession.

ORDER

Petitioner is accused in case registered vide FIR No.204 of 2019 dated 29.09.2019 Registered at Police Station, Bhuntar District Kullu, Himachal Pradesh under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Petitioner was arrested in the above noted case on 06.10.2019 and is in custody since then. 2. On completion of investigation, Challan was presented and the trial is pending before learned Special Judge, Kullu. Petitioner earlier filed bail petition under Section 439 CrPC before this Court which was registered as CrMPM No.926 of 2020. Petitioner withdrew the said petition on 02.07.2020 with liberty to move afresh at appropriate stage. Trial has commenced before learned Special Judge.

3. Petitioner is seeking his release on bail in above noted case under Section 439 CrPC on the premise that his implication is false. Since, he has been arrayed as an accused with the aid of Section 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, rigors of Section 37 would not apply especially when nothing was recovered from the possession of petitioner. The alleged disclosure by co-accused cannot be used against him. Conspiracy cannot be inferred from alleged telephone calls. There is no legal evidence against the petitioner. The mobile number alleged to be used by petitioner, in fact, did not belong to him.

4. It has further been contended on behalf of the petitioner that he is permanent resident of Village Chhaky, Post office Nagar Tehsil Sadar, District Kullu, Himachal Pradesh and has roots in the society. There is no likelihood of petitioner absconding from course of justice. He undertakes to abide by all the conditions as may be imposed. The petitioner has also relied upon statement of his brother Sh. Dharam Chand recorded in the case as PW-1 by learned Special Judge on 01.09.2021.

5. On notice, respondent has placed on record status report. As per case of respondent, a huge quantity of 3 Kg. 382 grams of cannabis (Charas) was seized from personal search of one Joseph Shobal during routine checking in a bus at about 11.20 P.M. on 29.09.2019 at Bajaura District, Mandi, Himachal Pradesh. Further investigation revealed that Joseph Shobal was resident of Kerala and had purchased the seized contraband for Rs.4,80,000/- from bail petitioner through one Mohsin. Contention of respondent is that there were regular telephonic conversations between petitioner Mohsin and Joseph Shobal between 26.09.2019 to 28.09.2019, which sufficiently revealed implication of petitioner in the crime.

6. I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent and have gone through the record made available during the course of hearing including the status report.

7. It is not in dispute that petitioner has been charged by learned Special Judge alongwith other co-accused and the trial has commenced. Petitioner himself has relied upon statement of PW-1 Dharam Chand recorded by learned Special Judge on 01.09.2021.

8. Once learned Special Judge has found existence of prima facie case against petitioner while framing the charge and the order of learned Special Judge has become final, it cannot be heard from the petitioner that no prima facie case is made out against him for offences under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances (NDPS), Act. This Court while hearing the bail application of petitioner will not adjudicate upon the merits of the order framing charge passed by learned Special Judge. That being so, the fetters mandated by Section 37 of the NDPS Act, dis-entitles petitioner from relief of bail