ORDER : 1. Petitioner has approached this Court for grant of bail under Section 439 Cr.P.C in case FIR No. 65 of 2021 dated 15.09.2021 registered at Police Station New Shimla, District Shimla, H.P. under Sections 21, 27 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Petitioner was arrested on 24.09.2021 and since then is in custody. 2. On 15.09.2021, official of Police Station, New Shimla raided a residential house in Sector-2 of New Shimla on the basis of secret information that narcotic substances were being sold from the said house. 3. Five persons, all of young age, were found inside the house. Material found on the bed, inside the house, suggested use of heroin. On their personal search, nothing incriminating was recovered, however, 1.93 grams of heroin was found in a pouch on the bed. The case was registered. 4. During investigation, it was found that one of the persons found inside the house had procured the heroin from the co-accused Brahmjeet @ Jeeta from Chandigarh. Said Brahmjeet @ Jeeta was also arrested and interrogated. 10.34 grams heroin was recovered from him. He further disclosed that he had been procuring the heroin from Delhi from a person from Nigeria. Police team alongwith Brahmjeet @ Jeeta visited Delhi to nab the person belonging to Nigeria, whose name was disclosed as Ndubuisi Benedict (petitioner). On search, petitioner was found, who after noticing Brahmjeet @ Jeeta in the company of police officials immediately took out a packet from his pocket and threw the same in the drain. Petitioner was apprehended by the police. 9.22 gram heroin was recovered from the packet thrown by the petitioner in the drain. Petitioner was arrested. 5. Challan has been presented after completion of investigation. All other persons arrayed as accused in the case have already been released on bail. 6. I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent- State and have also gone through the record carefully. 6. The intermediate quantity of heroin is alleged to have been recovered from the petitioner. Rigors of Section 37 of the NDPS Act will not be applicable in the case. 7. The only evidence regarding the involvement of petitioner in the sale of contraband is the statement of coaccused Brahmjeet @ Jeeta. 6. The intermediate quantity of heroin is alleged to have been recovered from the petitioner. Rigors of Section 37 of the NDPS Act will not be applicable in the case. 7. The only evidence regarding the involvement of petitioner in the sale of contraband is the statement of coaccused Brahmjeet @ Jeeta. Though this Court will not minutely scan the evidence collected by the police during investigation, nonetheless, such material can be looked into for assessment of seriousness and gravity of allegations against the bail petitioner. 8. As noticed above, no other evidence except the statement of co-accused is available against the petitioner. The allegations of petitioner having thrown a packet containing the intermediate quantity of heroin on citing the police are yet to be proved. 9. Pre-trial incarceration is not the Rule. In the facts of given case, the prolonged incarceration of petitioner is not justified. He is already in custody for the last about nine months. 10. The prayer of the petitioner has been opposed on behalf of the petitioner on the ground that petitioner is a foreign national. He was involved in another case under the NDPS Act in Delhi and had remained in Tihar jail for about 14 months. It is apprehended that in case of release of petitioner on bail, he may abscond and the trial may be affected adversely. It is mentioned in the status report filed on behalf of the respondent that despite repeated correspondence with the Nigerian Embassy, the details of passport and visa etc, of the petitioner have not been made available till date. It is also submitted that petitioner is trying to suppress his true identity. 11. To meet the objection of the respondent, learned counsel for the petitioner has stated that police had more than enough time to verify the antecedents of the petitioner. Petitioner is stated to be holder of Nigerian passport which according to learned counsel for the petitioner is in the records of Court of learned Special Judge at Delhi. A photocopy of the passport of petitioner has been placed on record. A copy of an order dated 11.03.2019 passed by learned Special Judge, NDPS, Dwarka Courts, New Delhi has also been placed on record, whereby the petitioner was granted bail in case FIR No. 102 of 2017 under Section 21-C of NDPS Act and Section 14 of the Foreigners Act. A copy of an order dated 11.03.2019 passed by learned Special Judge, NDPS, Dwarka Courts, New Delhi has also been placed on record, whereby the petitioner was granted bail in case FIR No. 102 of 2017 under Section 21-C of NDPS Act and Section 14 of the Foreigners Act. Perusal of order so placed reveals that the bail was granted to the petitioner in the case pending before learned Special Judge, NDPS, Dwarka Courts, New Delhi by holding as under: “Accordingly, in view of the above discussion, the present application stands allowed. The accused Ndubuisi Ngerem Benedict @ Bunny is granted bail on furnishing personal bond in the sum of Rs. 25,000/ with two sureties in the like amount each. The intimation be also got delivered to Nigerian Embassy as well as FRRO and receipt of bail order by them alongwith conditions imposed therein should be placed on the file before release of accused. Thereafter only, the bonds will be accepted and release warrants will be prepared. Accused is directed that he will not leave the country without the prior permission of this Court. Accused will attend the IO at his office once in a 15 days. LOC of accused be opened. The passport of accused be filed on record.” 12. Thus, there is sufficient material on record to suggest that passport of the petitioner was filed in the records of case pending before learned Special Judge, NDPS, Dwarka Courts, New Delhi. The respondent could have easily verified these facts even after the filing of the present petition. On 24.06.2022, respondent was specifically directed by this Court to place on record the information regarding status of the stay of bail petitioner in India, but the respondent has again come up with the plea that despite correspondence, they have not received any information from Nigerian Embassy. 13. Petitioner cannot be allowed to be incarcerated for indefinite period before conclusion of trial merely because the respondent has failed to fulfill its obligation. The apprehension of the respondent regarding possibility of petitioner fleeing from the course of justice can be taken care of by imposing appropriate conditions. 14. Merely because the petitioner is a foreign national cannot be taken as an impediment in grant of bail to the present petitioner. Admittedly, all other co-accused of petitioner have already been released on bail. 15. The apprehension of the respondent regarding possibility of petitioner fleeing from the course of justice can be taken care of by imposing appropriate conditions. 14. Merely because the petitioner is a foreign national cannot be taken as an impediment in grant of bail to the present petitioner. Admittedly, all other co-accused of petitioner have already been released on bail. 15. The petitioner is a foreign national, yet he will stay back for the purposes of trial may be at the risk of legal consequences of his over stay. Nothing has been produced on record to suggest that petitioner is in a position to influence the prosecution witnesses. 16. In the peculiar facts and circumstances of the case, the petition is allowed. Petitioner is ordered to be released on bail, in case FIR No. 65 of 2021 dated 15.09.2021 registered at Police Station New Shimla, District Shimla, H.P. under Sections 21, 27 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985, subject to his furnishing personal bond in the sum of Rs.1,00,000/- with one solvent surety in the like amount to the satisfaction of learned trial Court, which necessarily will be a permanent resident of State of Himachal Pradesh or having immovable property in Himachal Pradesh. This order, however, shall be subject to the following conditions: (i) That the petitioner shall not leave India without permission of learned trial Court. (ii) That petitioner shall surrender his passport before learned trial Court, if not already submitted before any other Court/authority and the release of his passport will be subject to the outcome of the trial. In case passport of petitioner is lying in deposit with some authority/Court, petitioner shall deposit the same before learned trial Court immediately on its release by such authority/Court. (iii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police. (iv) That the petitioner shall provide his mobile number and address to the Station House Officer of Police Station, New Shimla, District Shimla, H.P. In case of any change in the mobile number or address of the petitioner during the pendency of trial, he shall immediately inform the SHO, Police Station, New Shimla. (iv) That the petitioner shall provide his mobile number and address to the Station House Officer of Police Station, New Shimla, District Shimla, H.P. In case of any change in the mobile number or address of the petitioner during the pendency of trial, he shall immediately inform the SHO, Police Station, New Shimla. (v) That petitioner shall not delay the trial of the case and shall regularly attend the hearing, except in circumstances beyond his control. (vi) That upon his re-indulgence in criminal activity or in case of violation of any terms of this order, it shall be open to the prosecution to move this Court for cancellation of bail. 17. Any observations made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observations made herein above.