ORDER : 1. 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. 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 as prayed in the instant petition. 9. Section 37 of the NDPS Act, reads as under:- 37. That being so, the fetters mandated by Section 37 of the NDPS Act, dis-entitles petitioner from relief of bail as prayed in the instant petition. 9. 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, 1973 (2 of 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 of 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. 10. Admittedly, the quantity of contraband involved in the instant case is commercial. There is strong opposition from respondent to the grant of bail in favour of petitioner. In the teeth of charge framed against petitioner by Court of competent jurisdiction for offences under Sections 20 and 29 of the NDPS Act, existence of reasonable grounds of belief as to innocence of petitioner cannot co-exist. 11. Even otherwise, in the given facts of the case, it cannot be said that the implication of petitioner is without justifiable reasons. Prima facie corroboration to the allegations against the petitioner is found on record. 12. Though, the phone calls from mobile number attributed to petitioner were made by using a SIM card in the name of Dharam Chand, but it is the case of prosecution that Dharam Chand had handed over the SIM card No.78077-03025 to the petitioner. In my considered view, petitioner cannot derive any benefit from the statement of PW-1 Dharam Chand recorded by learned Special Judge for the reason that in his Examination-in-Chief this witness reiterated that he had handed over SIM No.78077-03025 to the petitioner after he had lost his mobile phone. In my considered view, petitioner cannot derive any benefit from the statement of PW-1 Dharam Chand recorded by learned Special Judge for the reason that in his Examination-in-Chief this witness reiterated that he had handed over SIM No.78077-03025 to the petitioner after he had lost his mobile phone. The evidence has to be appreciated by the learned Special Judge, however, the version of said witness is being noticed only to assess the prima facie material against the petitioner. 13. Petitioner is accused of selling huge quantity of contraband for consideration. It is also alleged that another case under the NDPS Act, is pending against the petitioner. Thus, it cannot be said that the petitioner if released on bail, will not indulge in the same activity during the bail. 14. An argument has further been raised on behalf of petitioner that as per admitted case of respondent no recovery was effected from petitioner, therefore, Section 37 of the NDPS Act will not be applicable. The argument so raised deserves to be rejected for the reason that Section 29 of the NDPS Act speaks about abetment or conspiracy that makes the person liable for punishment for the same offence of which abetment or conspiracy is alleged. Section 29 of the NDPS Act carves out an independent offence and will be covered under the expression “and also the offences involving commercial quantity” used in Section 37 (1) (b) of the NDPS Act. Thus, whenever a person is accused of offence under Section 29 of the NDPS Act and the involvement is of commercial quantity of contraband, undoubtedly, the rigors of Section 37 of the NDPS Act shall apply. 15. Even otherwise, the mere absence of recovery of contraband from the possession of an accused shall not exempt him from the rigors of Section 37 of the NDPS Act. Reference can be made to a recent judgment dated 22.9.2021 passed by the Hon’ble Supreme Court in Criminal Appeal No. 1043 of 2021 (Arising out of SLP (Crl) No. 1771 of 2021), titled Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, wherein it has been held as under: “24. Reference can be made to a recent judgment dated 22.9.2021 passed by the Hon’ble Supreme Court in Criminal Appeal No. 1043 of 2021 (Arising out of SLP (Crl) No. 1771 of 2021), titled Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, wherein it has been held as under: “24. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India vs. Rattan Mallik, (2009) 2 SCC 624 , a two judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37 (1) (b) and there was non-application of mind by the High Court. 25. In line with the decision of this Court in Rattan Mallik (Supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.” 16. In the light of above said discussion, petitioner has failed to make out any case for grant of bail. The petition is accordingly dismissed. 17. Any opinion expressed hereinabove shall be construed only for the purposes of disposal of this application and shall have no effect on the merits of the case.