JUDGMENT Anoop Chitkara, J. - For possessing 2.369 kilograms of Charas, the petitioner, who is under arrest, on being arraigned as an accused of brokering its sale, in FIR Number 346/19, dated 11.12.2019, registered under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in Police Station Sundernagar, District Mandi, HP, disclosing non-bailable offenses, has come up before this Court under Section 439 CrPC, seeking regular bail. 2. While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to procure status report either through WhatsApp/e-mail and forward the same to this Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on his WhatsApp number. 3. Mr. Nand Lal Thakur learned Additional Advocate General states that he has filed the status report through e-mail. He further submits that he has sent a copy of the status report to learned Counsel for the petitioner on his WhatsApp number. A printout of the status report is available on file. 4. I have read the status report(s) and heard Mr. Vaibhav Tanwar, learned counsel for the petitioner, Mr. Nand Lal Thakur, learned Additional Advocate General, for the respondent/State and Mr. Ashwani Sharma & Ms. Shradha Karol, learned Advocates as Amicus Curiae, through video conferencing. FACTS 5. The gist of the First Information Report and the status report is that on Dec 11, 2019, a Police party was conducting patrolling and traffic checking at a place known as Pungh within the jurisdiction of Police Station Sundernagar, Distt. Mandi, HP. During day time at around 2 O'clock, one bus bearing Punjab registration number, came from Sundernagar side, and it was bound from Manikaran to Chandigarh. Head Constable Lalit Kumar signaled the driver of the bus to halt on which he stopped the bus and parked it on the side. After that, the police started conducting checking the bus, and when they reached near seat No. 25, then they noticed that a person sitting on seat No. 25 was holding a back-pack on his lap. The police officials asked the said person to get his bag checked, and on this, he became perplexed and stated that there was nothing in his bag. The police officials asked the said person to get his bag checked, and on this, he became perplexed and stated that there was nothing in his bag. This aroused suspicion in Head Constable Lalit Kumar's mind that this person might be having some articles of theft. After that, the police inquired from the passengers sitting in the adjoining seats, but all of them refused to associate as witnesses. Subsequently, the police associated the bus driver and the conductor as witnesses and, in their presence, inquired from the said person about his name, who revealed his name as Kuldeep Kaushik, resident of Rohtak Haryana. On checking the bag, police recovered Charas which, when weighed, measured 2.369 kilograms. Subsequently, the police party seized the contraband, complied with the procedural requirements under the NDPS Act, and the CrPC and arrested the said person, namely Kuldeep Kaushik. The Forensic Science Report tested the said substance to be cannabis. 6. After the arrest of Kuldeep, Kaushik police conducted his interrogation. He revealed to the police that he had befriended one Lalit @ Shivnath Baba in Rohtak Math. He also told that he, along with Lalit @ Shivnath Baba, would smoke cannabis, after now called as 'charas'. Twothree months ago, he said that Baba had visited Himachal Pradesh and told Kuldeep Kaushik that he had befriended one who smokes marijuana, and the said person had told Shivnath Baba that in case he needs charas then he would arrange for the same. On Dec 5/6, 2019, the said Shivnath @ Baba had called Kuldeep Kaushik on his mobile phone and asked him to bring rupees 1.5 to 2 lacs to purchase charas. 7. On Dec 10, 2019, said Kuldeep Kaushik reached Bhuntar along with the money and said Lalit @ Shivnath Baba was also there. They talked to each other on the phone and decided the place to meet each other. After the meeting, the said Lalit @ Shivnath Baba made a phone call to Prem Singh (petitioner herein) on his Mobile No. 88948 49311 from his Mobile No. 86838 12506. Prem Singh told Lalit @ Shivnath that he could not come on that day. Consequently, both Lalit @ Shivnath and Kuldeep Kaushik stayed in a hotel at Bhuntar. 8. After the meeting, the said Lalit @ Shivnath Baba made a phone call to Prem Singh (petitioner herein) on his Mobile No. 88948 49311 from his Mobile No. 86838 12506. Prem Singh told Lalit @ Shivnath that he could not come on that day. Consequently, both Lalit @ Shivnath and Kuldeep Kaushik stayed in a hotel at Bhuntar. 8. On Dec 11, 2019, said Shivnath Baba again made a phone call to Prem Singh, and on this Prem Singh told him that he is reaching Bhuntar in his car bearing No. HP49A 0837. On reaching there, he took Lalit @ Shivnath Baba and Kuldeep Kaushik in his vehicle towards a place known as Ropa. On reaching Ropa, Prem Singh made a phone to Nika Ram on his Mobile No. 9816607114 and asked him to bring the cannabis. After some time, said Nika Ram reached Ropa and sat inside the car mentioned above. 9. After that, inside the car of Prem Singh (petitioner), the said Nika Ram negotiated sale of the charas to him and agreed to sell the same for a sum of rupees 1.49 lacs. Subsequently, on payment of the amount, Nika Ram handed over the charas to Prem Singh. On receiving the money, Prem Singh took out rupees eight thousand as his commission and also gave rupees two thousand to Lalit @ Shivnath as his commission. Subsequently, all these four persons reached near Ropa bus stand where Prem Singh (petitioner) dropped Lalit @ Shivnath and Kuldeep Kaushik near the bus stand Ropa and himself along with Nika Ram proceeded further towards Sainj. 10. On reaching the bus stand, Ropa, Lalit @ Shivnath, and Kuldeep Kaushik boarded a private bus and arrived towards Aut where Kuldeep got down from the bus, and Lalit @ Shivnath went in the different direction. 11. The police procured the call details of these phone numbers and found that there were telephonic conversations between them. The police could not arrest Nika Ram and consequently moved an application under Section 82 CrPC for declaring him as a Proclaimed Offender. PREVIOUS CRIMINAL HISTORY 12. Petitioner has no previous criminal history. SUBMISSIONS: 13. Mr. Vaibhav Tanwar, the Counsel for the petitioner submits that the evidence collected by the Investigator is insufficient to fasten his guilt. 14. Mr. The police could not arrest Nika Ram and consequently moved an application under Section 82 CrPC for declaring him as a Proclaimed Offender. PREVIOUS CRIMINAL HISTORY 12. Petitioner has no previous criminal history. SUBMISSIONS: 13. Mr. Vaibhav Tanwar, the Counsel for the petitioner submits that the evidence collected by the Investigator is insufficient to fasten his guilt. 14. Mr. Nand Lal Thakur, Additional Advocate General submits that the quantity recovered is Commercial Quantity and the petitioner must cross the riders of S. 37 of NDPS Act. Once he is able to satisfy the twin conditions of S. 37 of NDPS Act, only after that he may be entitled for bail. 15. Dr. Ashwani Sharma, Ld. Amicus Curiae contends that the object of Bail is to Secure Appearance during the trial. Resultantly the mechanical detention should be demoted. Presumption of innocence is a Human Right and the statement of co-accused just has a probative value. 16. Dr. Ashwani Sharma, Ld. Amicus Curiae refers to the following Judicial precedents: a) That jurisprudence and principles of bail have been laid down in the case titled as Gudi Kanti Vs Public Prosecutor of Andhra Pradesh, (1978) 1 SCC 240 the Hon'ble Supreme Court has held that the court is cryptic on this topic and the court prefers to be tacit, be the orders custodial or not. And yet, the issue is one of liberty justice, public safety and burden of the public treasury, all of which insists that a developed jurisprudence of bail is integral to a socially sensitized judicial process. .......Article 21 that the curial power to negate it is a greater trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community...after all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in term of procedure established by law. Further, the public justice is to be promoted, mechanical detention should be demoted. Public justice is central to the whole scheme of bail law. ...Fleeing justice must be forbidden but punitive harshness should be minimized. b) In Sanjay Chander Khanna v. CBI, (2012) 1 SCC 40 , Supreme Court holds that the object of the bail is to secure the appearance of the accused person at his trail and the object the bail is neither punitive nor preventive. ...Fleeing justice must be forbidden but punitive harshness should be minimized. b) In Sanjay Chander Khanna v. CBI, (2012) 1 SCC 40 , Supreme Court holds that the object of the bail is to secure the appearance of the accused person at his trail and the object the bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon.... The jurisdiction on Criminal court to grant bail is discretionary, it has be exercised with great care and caution by balancing the valuable right and liberty of an individual and the interest of the society in general. Further held that when the under-trial prisoner is detained in jail custody to an indefinite period, article 21 of the Constitution is violated. c) In Vaman Narain Ghiya vs. State of Rajasthan, (2009) 2 SCC 281 , the apex court held "Philosophy of bail was discussed by the apex court wherein it was held that "Bail" remains an undefined term in CrPC. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb "bailer" which means to "give" or "to deliver", although another view is that its derivation is from the Latin term "baiulare", meaning "to bear a burden". Bail is a conditional liberty. Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states that when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sum of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sum of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed-that is to say, set at liberty until the day appointed for his appearance. Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice. d) In Noor Aga vs State of Punjab & Anr, (2008) 16 SCC 417 , the apex court held that the presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Right. If, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statuary provisions (which of course, must be read in the light of the constitutional guarantee as adumbrated in Articles 20 and 21 of the Constitution of India. The Court further holds that the Act specifically provides for the exceptions. It is trite law that presumption of innocence being a human right cannot be thrown aside, but it has to be applied subject to exceptions. 17. Dr. Ashwani Sharma, Advocate, on the point of determination of the Conscious Possession, placed reliance upon the following precedents of law: a) In Madan Lal & Anr. vs State of H.P., (2003) 7 SCC 465 the apex court held that it is highlighted that unless the possession was coupled with requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, section 20 is not attracted. b) In Ram Singh Vs CBN, (2011) 11 SCC 347 , Hon'ble Supreme Court held that it is trite that to hold a person guilty, possession has to be conscious, control over the goods is one of the tests to ascertain conscious possession so also the title. b) In Ram Singh Vs CBN, (2011) 11 SCC 347 , Hon'ble Supreme Court held that it is trite that to hold a person guilty, possession has to be conscious, control over the goods is one of the tests to ascertain conscious possession so also the title. c) In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 the apex court held that the expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 18. On S. 29 of NDPS Act, Dr. Ashwani Sharma submitted that the Prosecution need not to prove its case with mathematic accuracy, and referred to the following Judicial precedents: a) In State of Karnataka v. J. Jayalalitha, (2017) 6 SCC 263 , Supreme Court referred to the judgment in Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747 , wherein it was expounded that "in our criminal justice system, for recording guilt of the accused, it is not necessary that the prosecution should prove the case with absolute or mathematical certainty but only beyond reasonable doubt and the criminal courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind, some "residual doubt" even though the courts are convinced of the accused persons' guilt beyond reasonable doubt. b) In State v. Anup Kumar Srivastava, (2017) 15 SCC 560 apex court held that the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do. c) In State (Govt. of NCT of Delhi) v. Nitin Gunwant Shah, (2016) 1 SCC 472 the apex court held that it is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. of NCT of Delhi) v. Nitin Gunwant Shah, (2016) 1 SCC 472 the apex court held that it is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that meeting of mind is essential; mere knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of minds of the accused....Needless to say that the entire foundation of the prosecution story was never established. d) In Subramanian Swamy v. A. Raja, (2012) 9 SCC 257 at page 283 the apex court held that Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the MoF and that of DoT and between two Ministers, which are all recorded and suspicion, however, strong, cannot take the place of legal proof e) In Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540 , Supreme Court held that the offence of criminal conspiracy under Section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are coparticipators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy." f) In Vijayan Versus State of Kerala, (1999) 3 SCC 54 , Apex court held it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence, therefore, from the established facts an inference could be drawn but there must be some material from which it would be reasonable to establish between the alleged conspiracy and the act done pursuant to the said conspiracy. 19. Dr. Ashwani Sharma, Advocate, on the statement of co-accused and its probative value placed reliance on the Judicial pronouncement in Surinder Kumar Khanna v. Directorate of Revenue Intelligence, (2018) 8 SCC 271 , wherein the apex court held that in the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court, such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilised in order to lend assurance to the Court. 20. Ms. Shradha Karol, Ld. Amicus Curiae submitted as follows: SECTION 29- PUNISHMENT FOR ABETMENT AND CRIMINAL CONSPIRACY 1) Abetment as defined under Section 107 IPC. 20. Ms. Shradha Karol, Ld. Amicus Curiae submitted as follows: SECTION 29- PUNISHMENT FOR ABETMENT AND CRIMINAL CONSPIRACY 1) Abetment as defined under Section 107 IPC. The essential ingredients of the Section are: - a) A person instigates any person to do that thing; b) A person engages with or more other persons in any conspiracy for the doing of that thing; c) Intentionally aids, by act or illegal omission, the doing of that thing. 2) The prosecution to prove the case under Section 107 IPC would have to prove both instigation and mens rea. It shall have to prove that the person is said to instigate the other person by doing an act which makes the other person to do any such act as possible, either directly and indirectly. Furthermore, it shall have to prove active conscious of the person and that there was not any negligence or carelessness. 3) Criminal conspiracy as defined under Section 120 B IPC. The essential ingredients of the Section are: - a) Object to be accomplished; b) A plan or scheme to accomplish the object; c) An agreement or understanding between two persons for the accomplishing the object; d) Acts are committed in the jurisdiction. 4) Abatement and Conspiracy has been defined under Section 109 IPC and the essential ingredients are: a) Instigation b) Conspiracy c) With the aid constituting abetment. 5) It is not necessary for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. 6) The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is the only condition that must be fulfilled for a person to be guilty of abetment by instigation. 21. Ms. Shradha Karol, Ld. 6) The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is the only condition that must be fulfilled for a person to be guilty of abetment by instigation. 21. Ms. Shradha Karol, Ld. Amicus Curiae refers to the following judicial precedents: a) Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 - The Hon'ble Court while dealing with the issue of under trials in NDPS matters stated that in such cases considering the gravity of the offence deprivation of personal liberty to some extent is justified. However, what is not justified is that refusing bail due to strict provisions on one day and delaying trial of the case on the other hand. b) Babua v. State of Orissa, (2001) 2 SCC 566 - The Hon'ble Court while dealing with bail under the provisions of the NDPS Act has held that what needs to be considered by the court is that if the prosecution statements are to be believed they will result in conviction. If the court couldn't give an answer in negative, the bail could not have been granted. Furthermore, these statements need to examine carefully till the evidence has not be completely adduced before the trial court. The Court further held that liberty of the person seeking bail has to be balanced with the interest of the society. In cases where narcotic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such person behind the bars during the pendency of the proceedings. c) Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 - The Hon'ble Court while dealing with a matter under MACOCA wherein Section 21 is pari materia to Section 37 of the NDPS, stated that restriction on the power of the court to grant bail is not to be pushed too far but if the court is satisfied with the material placed on record that in all probability the accused may not be ultimately convicted, an order of rant of bail ought to be passed. Hon'ble Court further observed that the wording of the Section didn't lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the act since at that time it may not be possible for the prosecution to obtain a judgement of conviction or acquittal. Thus, the intention of the legislature must be construed reasonably so that the court is able to maintain a delicate balance between judgement of acquittal and conviction and an order of granting of bail before the commencement of trial. d) Francis Stanly v. Intelligence Officer, NCB,2006 133 SCC 210 - The Hon'ble Court while dealing in appeal against conviction based on confession of the co-accused which was later retracted, held that the confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority shall have to be closely scrutinized. Furthermore, such confession shall be required to be corroborated with independent sources. e) Satpal Singh v. State of Punjab, (2018) 13 SCC 813 (3 Judges)- The Hon'ble Court while dealt with the interplay of Section 37 NDPS Act and 439 of CrPC stated that condition under Section 37(1)(b)(ii) are in addition to the limitation of the CrPC. and liberal approach in matter of bail under NDPS Act is uncalled for. ANALYSIS AND REASONING: 22. The main allegation against the Petitioner is that co-accused called up Prem Singh on his mobile no. 8894849311 and the exchange of the cannabis took place in his car HP 49A0837. Furthermore, he took an amount of Rs. 8000/- from the total cash amount for brokering the deal. 23. Pre-Trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim(s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. 24. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. 24. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. 25. The law is well settled that the two conditions that need to be satisfied are that the prosecution must be given the opportunity to oppose the application and that court must be satisfied that there are reasonable grounds for believing that he is not guilty of such and offence. If either of these two conditions are not satisfied, the ban of granting bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. 26. In other words, Section 37(1)(b)(ii) mandates twin conditions to be satisfied before a person/ accused to be released on bail the first is when the public prosecutor does not oppose the bail. Secondly, the court must be satisfied that there exists a reasonable ground for believing that the person/ accused is not guilty of such offense and is not likely to commit any crime while on bail. 27. Criminal conspiracies are hatched in secrecy. Learned Additional Advocate General submits that at this stage, it has come in the investigation about telephonic conversations. Suffice to say that the quantity involved in this case is the commercial quantity, and the petitioner has failed to cross the riders of Section 37 of the NDPS Act. 28. Therefore, at this stage, the petitioner has not made a special case to get bail. However, the petitioner shall be at liberty to file a fresh bail application either before this Court or before the trial Court after the filing of the police report prepared under Section 173(2) CrPC. 28. Therefore, at this stage, the petitioner has not made a special case to get bail. However, the petitioner shall be at liberty to file a fresh bail application either before this Court or before the trial Court after the filing of the police report prepared under Section 173(2) CrPC. Needless to say, that at that time, the Court considering the bail application shall not get influenced by the observations made hereinbefore. 29. Resultantly, there is no merit in the present petition and the same is accordingly dismissed. Before parting, this Court expresses its appreciation and gratitude to learned Amicus Curiae, Dr. Ashwani Sharma and Ms. Shradha Karol, Advocates, for the excellent assistance rendered by both of them.