JUDGMENT 1. - The instant criminal misc. bail application under Section 439 of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter) has been filed by the accused-petitioner in FIR No. 12 of 2005, Police Station, Dangiawas, Distt. Jodhpur. 2. Facts and circumstances giving rise to the instant bail application are that on 18.1.2005, Circle Officer, Biiara directed SHO, Police Station, Dangiavas for 'Nakabandi' at Dangiawas informing him that a jeep with a great speed is coming from Biiara side, which is being chased by the Circle Officer and other police officials as the police had secret information that in the said jeep, three persons are carrying opium. It is alleged that by seeing the Police 'Nakabandi', the jeep driver alleged to have been carrying opium suddenly turned the jeep on a way to village Dangiawas-Pithawas. The said jeep was chased by the Circle Officer, Biiara alongwith police party, SHO, Police Station Biiara alongwith poiice party in a jeep and SHO, Police Station, Dangiawas alongwith police party. It appears that near to hamlet (Dhani) of one Bhiyanram Bishnoi, who is grand-father of present petitioner, a person alighted from the jeep having a bag and started running. He was surrounded by the police party and caught with bag containing opium weighing 11.900 kgs. (opium milk). The secret information received from Circle Officer, Biiara was reduced to writing. The petitioner was served with a notice under Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act' hereinafter) wherein the petitioner consented that he is prepared to be searched himself and the bag, which he had. The consent was reduced to writing and signed by the petitioner in presence of two Motribs. The petitioner and the bag which he had were searched in presence of two Mothers. The bag was found containing the opium milk weighing 11.900 kgs., samples were taken and sealed.The petitioner failed to show permit for possession of the said opium and therefore, he was arrested. The contrabrand opium, alleged to have been recovered from the petitioner is commercial quantity. The usual investigation was carried out including preparation of site map, site inspection, the spot sealing and the statements of the witnesses under Section 161 of the Code viz. Raji Ram, Madho Singh, Chen Singh, Balwat Singh, Arshad Ali, Dy. S.R Sohan Lai, Rampal, Hariram, Mohd. Noor, Ramkishore, Mangilal, Jagdish etc. The usual investigation was carried out including preparation of site map, site inspection, the spot sealing and the statements of the witnesses under Section 161 of the Code viz. Raji Ram, Madho Singh, Chen Singh, Balwat Singh, Arshad Ali, Dy. S.R Sohan Lai, Rampal, Hariram, Mohd. Noor, Ramkishore, Mangilal, Jagdish etc. recorded by the police. Almost all the witnesses noticed above stated that it was the present petitioner, who alighted from the jeep having a bag, the jeep was carrying the contraband opium. During investigation, it appears that father of the petitioner moved to the State Government stating therein that his son, the present petitioner is innocent and plea of alibi was taken that on the relevant date, he was busy in election meeting of one Thana Ram, who alleged to have contested the election for Sarpanch. If the request of the father of the petitioner, the investigation was changed. It appears that the subsequent investigation was carried out by one Ram Niwas, Circle Inspector under the supervision of Mahendra Singh Choudhary, Additional S.R CID, CB. The statements of the witnesses noticed above were again recorded. Apart from the statements of these witnesses, the police also recorded the statements of some of the villagers in support of the plea of alibi. 3. I have carefully gone through the statements earlier recorded by the police and subsequently by police (CID, CB). So far as the witnesses to the occurrence are concerned, they are consistent to the case as setup originally by the police and almost all those witnesses categorically stated that on receiving a secret information that a jeep occupied by three persons is carrying opium, which was chased by the Circle Officer of rank of Dy.S.R and other police officials as also the SHO, Police Station, Biiara, however since the said jeep was at a great speed and it was plying on the road from Biiara to Jodhpur via Dangiawas and, therefore, Circle Officer, Biiara informed the SHO, Dangiawas to have the 'Nakabandi'. SHO, dangiawas was well in found that a jeep coming from Biiara at a great speed in carrying opium. That information was reduced to writing and with no lost of time, the 'Nakabandi' was held and seeing the 'Nakabandi' the driver of the jeep suddenly took the jeep on the way to village Dangiawas. SHO, dangiawas was well in found that a jeep coming from Biiara at a great speed in carrying opium. That information was reduced to writing and with no lost of time, the 'Nakabandi' was held and seeing the 'Nakabandi' the driver of the jeep suddenly took the jeep on the way to village Dangiawas. The jeep was continuously being chased by the Circle Officer and its party and SHO, Biiara and its party. The SHO, Dangiawas too chased the jeep when it suddenly turned by seeing the police 'Nakabandi'. After some distance, the jeep stopped for a while near to 'Dhani' of Bhiyanram Bishnoi, the grand-father of present petitioner, and one person alighted from the jeep having a bag and thereafter, he started running. He was surrounded by the police and caught with the bag containing opium weighing 11.900 kgs. opium milk.This evidence prima facie shows that it was the petitioner, who was found in possession of contrabrand opium noticed above. Some of the villagers, who may be interested in petitioner and his relatives, if at all say that the petitioner was busy in serving the tea to the public in a meeting held for the election of Sarpanch, even on careful perusal of the statements of the various witnesses, they say that he was there upto 4.00 RM. The occurrence is between 4.45 RM. to 5.00 RM. Some of the witnesses in the subsequent investigation shown the occurrence of at about 3-3.30 RM., obviously the plea of alibi taken by the petitioner is that upto 4.00 PM., the petitioner was busy in serving the tea but at this stage, the entire official record of the police right from receiving the secret information, wireless messages QST etc. cannot be brushed aside only because the witnesses interested in the petitioner say that the occurrence is of at 3-3.30 RM. whereas the very information canvassed to SHO, Police Station, Dangiawas by Circle Officer, Biiara was at 4.30 P.M. and thereafter the "Nakabandi' was held. The occurrence is alleged to have taken place nearly between 4.45 to 5.00 RM. Thereafter on investigation being changed at the instance of the petitioner, Circle Inspector Ram Niwas and Additional Superintendent of Police, Mahendra Singh Choudhary (CID-CB) recorded the statements of various persons, who are close relatives and directly interested in the petitioner in order to set up the plea of alibi. 4. Thereafter on investigation being changed at the instance of the petitioner, Circle Inspector Ram Niwas and Additional Superintendent of Police, Mahendra Singh Choudhary (CID-CB) recorded the statements of various persons, who are close relatives and directly interested in the petitioner in order to set up the plea of alibi. 4. I have also gone through the statements of the witnesses recorded by the police (CID-CB). Witness Chunaram stated that grand-father of petitioner is also an opium smuggler and had been in jail many times. Witness Smt. Sita, who is aunt of the petitioner stated that at about 3.30 RM., three jeeps one after others came at a great speed from west side of hamlet, entered the field, crossed the iron gate and went to tarmac road. She stated that petitioner is son of his elder brother-in-law (Jeth). It appears that the statements of the close relatives and the persons directly interested in the petitioner has been recorded in order to help the petitioner. The statements of the witnesses recorded by this officer are nothing but either of the family members of the petitioner or his close relatives or the persons of his community or the persons, who alleged that he was with them in an election meeting. The strong evidence available on record cannot be overthrown on the basis of such statements even the witness Smt. Sita, who is aunt of the petitioner shows that the occurrence took place at 3.00- 3.30 RM., whereas the entire official record of the police including the secret information, wireless messages, Rojnamcha Report of Police Station, Dangiwas, receiving information, holding 'Nakabandi' and changing the jeep carrying contraband opium show the occurrence after 4.30 RM., i.e. between 4.30 RM. to 5.00 RM. Thus, even prima facie no reliance can be placed on the statement of the witnesses, who stated that the occurrence took place at 3.00-3.30 RM. The perusal of the statements of such witnesses clearly shows that they are directly interested in the petitioner. Be that as it may, in my view, prima facie there is a strong evidence against the petitioner that he was found in possession of the contrabrand opium milk weighing 11.900 kgs. punishable under the provisions of NDPS Act. The contraband opium recovered from the petitioner is commercial quantity and, therefore, for the purpose of bail, the provision of Section 37 of the NDPS Act is applicable. punishable under the provisions of NDPS Act. The contraband opium recovered from the petitioner is commercial quantity and, therefore, for the purpose of bail, the provision of Section 37 of the NDPS Act is applicable. Section 37 of the NDPS Act reads as under: "37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1974- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting on bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 5. In State of M.P. v. Kajad, (2001) 7 SCC 673 , the Hon'ble Supreme Court has held that Section 37 of the Act enjoins that a person accused of an offence, punishable under the NDPS Act shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). For granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 of the NDPS Act are in addition to the limitations provided under the Code of Criminal Procedure or any other law regulating grant of bail. Liberal approach in the matter of bail under the NDPS Act is uncalled for. 6. In Union of India v. Ikram Khan & Ors. Liberal approach in the matter of bail under the NDPS Act is uncalled for. 6. In Union of India v. Ikram Khan & Ors. (2000) 9 SCC 221 , the Hon'ble Supreme Court has held that while considering the question of bail, the Court has not borne in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature and the Court must bear in mind the said provisions before deciding the application for bail in case an accused is facing trial under the provisions of NDPS Act. In that view of the matter, the orders impugned therein of the High Court granting bail as well as refusing to cancel the bail were held to be not sustainable and quashed. 7. Keeping in view the provision of Section 37 of the NDPS Act and the facts of the instant case, wherein prima facie the petitioner has been found in possession of a huge quantity of contraband opium milk weighing 11.900 kgs. and the fact that Section 54 of the NDPS Act raises a presumption that if the accused is found in possession of illicit articles, then it may be presumed, unless and until, the contrary is proved, that the accused has committed an offence for which he fails to account satisfactorily. Be that as it may, in such matter, the onus upon accused to disprove the possession lies, since the matter is still at the investigation stage, therefore, without commenting on the merit of the case, which may prejudice the case of either party, I am of the view that prima facie there is a strong evidence against the petitioner that he was found in possession of contraband opium milk weighing 11.900 kgs. which is a commercial quantity as provided in NDPS Act and, therefore, prima facie offence punishable under Section 8 read with Section 18(b) is made out from 1 the record. The offence under Section 8/18(b) of the NDPS Act provides that where the contravention involves commercial quantity is punishable with rigorous imprisonment for a term which shall not be, less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees. In the 1 instant case, it cannot be said that there are reasonable grounds for believing that accused petitioner is not guilty of offence punishable under Section 8/18(b) of the NDPS Act and that he is not likely to commit any offence while on bail. In this view of the matter. I do not find any merit in the bail application filed by the petitioner under Section 439 Cr.RC.s 8. Accordingly, the bail application filed by petitioner Pharsa Ram under Section 439 Cr.RC. is dismissed.Bail application dismissed. *******