ORDER : 1. Bail petitioner, namely, Mohan Gharati, who is behind the bars since 02.01.2020, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C. for grant of regular bail in case FIR No. 02/2020, dated 02.01.2020, under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short “the Act”) registered at Police Station Dharampur, District Solan, H.P. 2. Pursuant to order dated 29.10.2021, respondent-State has filed status report. ASI Manohar Singh, Police Station Dharampur, District Solan, has also come present alongwith record. Record perused and returned. Close scrutiny of record/status report clearly reveals that on 02.01.2020, at about 9.30 P.M. police party on patrol duty after having noticed suspicious activities of three persons near Jawala Mata Temple, Dharmpur, deemed necessary to cause their search. Since accused after having seen police, made an attempt to flee away from the spot, police apprehended them and carried out their search. They allegedly recovered 1.460 kgs and 1.470 kgs of opium each, from the rucksacks (Pithu bags) of the persons, namely, Shashi Ram Pun and Suresh Gharti, whereas, nothing was recovered from the conscious possession of the present bail petitioner. Since, no plausible explanation, if any, ever came to be rendered on record qua the possession of aforesaid quantity of contraband from the conscious possession of two persons named hereinabove, police after completion of necessary codal formalities, lodged FIR detailed hereinabove and arrested accused including present bail petitioner. Since, bail petitioner was alongwith persons from whose conscious possession contraband came to be recovered, police also registered case against him. Both the accused, namely, Shashi Ram Pun and Suresh Gharti, from whose conscious possession intermediate quantity of opium came to be recovered, already stand enlarged on bail, whereas, present bail petitioner is behind the bars. Since, challan stands filed in the competent court of law and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail. 3. Mr. Since, challan stands filed in the competent court of law and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail. 3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of challan in the competent court of law and enlargement of other co-accused on bail, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail may be rejected. Mr. Bhatnagar, further submits that though nothing came to be recovered from the conscious possession of the present bail petitioner, but there is overwhelming evidence adduced on record suggestive of the fact that present bail petitioner alongwith other co-accused indulged in illegal trade of narcotics and as such, it cannot be said that he has been falsely implicated. Lastly Mr. Bhatnagar, learned Additional Advocate General, states that since two accused came to be apprehended together by police, alleged contraband of 2.930 kgs. (1.460 kgs + 1.470 kgs) can be said to be recovered from the conscious possession of the accused named in the FIR and as such, rigours of Section 37 of the Act are attracted; and prayer made on behalf of the present bail petitioner for grant of bail, deserved outright rejection. 4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on the date of alleged incident, police without associating independent witnesses, allegedly recovered 1.460 kgs and 1.470 kgs of opium each, from two bags allegedly carried out by two accused, namely Shashi Ram Pun and Suresh Gharti. It is not in dispute that nothing came to be recovered from the conscious possession of present bail petitioner, rather he only came to be named in the FIR on account of his presence alongwith other accused at the time of recovery. It is not in dispute that nothing came to be recovered from the conscious possession of present bail petitioner, rather he only came to be named in the FIR on account of his presence alongwith other accused at the time of recovery. As per own case of Investigating Agency, 1.460 kgs of opium was recovered from the rucksack of accused, namely, Shashi Ram Pun and 1.470 kgs of opium was recovered from the rucksack of accused, namely, Suresh Gharti and as such, it cannot be said that commercial quantity of opium came to be recovered from the conscious possession of the accused named in the FIR. As per NDPS Act, commercial quantity of opium is more than 2.5 kg and as such, contraband recovered in the instant case, cannot be said to be of commercial quantity. Though, Mr. Sudhir Bhatnagar, learned Additional Advocate General, tried to carve out a case that since both the accused named hereinabove, obtained opium from one source, contraband came to be recovered from them, is required to be clubbed while determining the weight of the same and if it is so done, quantity came to be recovered from the conscious possession of two accused, namely, Shashi Ram Pun and Suresh Gharti, can be said to be of commercial in nature and as such, rigours of Section 37 of the Act are attracted. However, this Court finds no force in the aforesaid submission made by learned Additional Advocate General for the reason that as per own case of the prosecution, 1.460 kgs and 1.470 kgs of opium each, came to be recovered from two rucksacks being carried out by two accused, namely, Shashi Ram Pun and Suresh Gharti and as such same cannot be weighed together, merely, on the ground that both the accused named hereinabove, purchased the same from the same source. 5. Leaving everything aside, this Court finds that nothing came to be recovered from the present bail petitioner and as such, it is not understood that how on account of his mere presence alongwith other accused, that too, on the road, he came to be named in the FIR. 5. Leaving everything aside, this Court finds that nothing came to be recovered from the present bail petitioner and as such, it is not understood that how on account of his mere presence alongwith other accused, that too, on the road, he came to be named in the FIR. At this stage, learned Additional Advocate General, submits that as per evidence collected on record, accused, namely, Shashi Ram Pun and Suresh Gharti were handed over the quantity of contraband recovered from them in the presence of present bail petitioner, but such fact, if any, is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence. Whether present bail petitioner, from whose conscious possession nothing came to be recovered, was involved in the alleged commission of offence punishable under Sections 18 and 29 of the Act, is a question needs to be determined in totality of evidence collected on record by Investigating Agency and his mere presence at the time of purchase by other two accused from third party, cannot be made basis to conclude his complicity in the offence. As has been observed hereinabove, contraband recovered from the conscious possession of other two accused, is of intermediate quantity and as such, rigours of Section 37 of the Act, are not attracted. Since, both the two main accused, from whose conscious possession contraband came to be recovered already stand enlarged on bail, there is no justification to let present bail petitioner incarcerate in jail for indefinite period during trial, especially when he has already suffered more than one and half year. Hon'ble Apex Court as well as this Court in a catena of cases have repeatedly held that one is deemed to be innocent till the time, his/her guilt is not proved in accordance with law and as such, it would be in the interest of justice to curtail the freedom of the bail petitioner for indefinite period during the trial. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent conditions. 6. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent conditions. 6. The Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh and Another decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.” 7. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 8. The Hon’ble Apex Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 49, held as under: “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. 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 Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases “necessity” is the operative test. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the propose of giving him a taste of imprisonment as a lesson.” 9. In Manoranjana Sinh alias Gupta vs. CBI, 2017 (5) SCC 218 , The Hon’ble Apex Court has held as under: “This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 10. The Hon’ble Apex Court in Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima-facie or reasonable ground to believe that the accused had committed the offence. (ii) nature and gravity of the accusation. (iii) severity of the punishment in the event of conviction. (iv) danger of the accused absconding or fleeing, if released on bail. (v) character, behaviour, means, position and standing of the accused. (vi) likelihood of the offence being repeated. (vii) reasonable apprehension of the witnesses being influenced. (viii) danger, of course, of justice being thwarted by grant of bail. 11. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, bail petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 50,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application. (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever. (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever. (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer. (d) He shall not leave the territory of India without the prior permission of the Court. 12. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.