JUDGMENT : 1. Applicant has sought regular bail in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred as the “code”) in case NCB Crime No. 01/2018 dated 08.01.2018 for the commission of offences punishable under Sections 8/20/28 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short the “NDPS Act”). It is averred, that applicant has been implicated in a false and frivolous case as he was standing in the parking area of Super Speciality Hospital Jammu, was having nothing on his person or in his hands, whereas, on 08-01-2018 non-applicant recovered four packets of charas wrapped in brown colour cello tape weighing 1.490 kg from the vehicle of co–accused Sanjay Kumar who was driving the vehicle bearing registration No. JK02V-9939 (Tempo Traveller); that non-applicant prepared the arrest memo of the applicant after falsely showing the aforesaid recovery from the possession of applicant, whereas, the only fault of applicant was that he was just standing near Super Speciality Hospital Jammu in parking area; that there has been violation of the mandatory provisions of NDPS Act as after recovery/seizure memo the NCB team alongwith the applicant and other accused persons and seized drugs and vehicle in question returned to NCB office at Gandhi Nagar Jammu where the seized narcotics i.e. charas was mixed homogeneously and weighed it and the net weight of the contraband again was found 1.490 kg, the said procedure adopted by the I.O is totally unknown to the provisions of NDPS Act and is absolutely arbitrary and casts serious doubt on the genuineness of the case. It is averred, that instead of drawing out samples at the place of recovery at Super Speciality Hospital Jammu in presence of the independent witnesses who had gathered on spot, as per the story of non applicant the I.O as per his own admission in the complaint, has withdrawn samples of 24-24 grams from the alleged recovered/seized charas and sealed them in polythene pouches after heat sealing them in the NCB Office at Gandhi Nagar Jammu with the seal of Narcotics Control Bureau JMM02 which is gross violation of provisions of the NDPS Act; that the false and frivolous statements of the accused under Section 67 of the NDPS Act were recorded which were not voluntary and lose its relevance; that the trial court has passed the impugned order of rejection of bail in a slipshod manner without appreciating the averments applicant shall not tamper the prosecution evidence and will remain present before the trial Court on each and every date of hearing. 2. Non-applicant by filing the counter/objections has vehemently opposed the bail on the grounds, that on 08-01-2018 contraband charas of commercial quantity weighing 1.490 kg has been recovered from a vehicle bearing registration No. JK02V/9939 during morning hours driven by co-accused Sanjay Kumar at Super Speciality Hospital Jammu, the statement of co-accused Sanjay Kumar recorded u/s 67 of NDPS Act by Non-applicant/NCB disclosed that the aforesaid consignment was to be delivered to applicant/accused Dabal Kumar. It is contended, that Sh. C.S. Rathore I.O (PW-1) immediately rushed towards vehicle alongwith his team and introduced himself and NCB team to both the persons, who disclose their names as Sanjay Kumar (A1) S/o Dhano Raj R/o 179/F, Shopping Centre Bakshi Nagar Jammu and another person disclosed his identity as Dabal Kumar (A2) S/o Siddu Kumar R/o Nepal presently residing at New Navi Sadak in front of Sharman Ki Kothi Panjtirthi Pacca Danga Jammu, the Intelligence Officer served notice u/s 50 of NDPS Act 1985 to both the accused explaining them the provisions of Section 50 of NDPS Act that they have a legal right to be searched in presence of a Magistrate or any Gazetted officer for which both the persons declined and preferred to reply in writing that any NCB officers present there can take their personal search, after which Sh. C. S. Rathore I.O (PW-1) carried out personal search of Sanjay Kumar and Dabal Kumar but no narcotics substance was recovered from their possession, after personal search by Sh. C. S. Rathore he took the search of vehicle bearing registration No. JK02V/9939 (Tempo Traveler) and recovered four packets of Charas duly wrapped with brown colour cello tape from left rear light of the vehicle, which was weighed with weighing machine and found 1.490kg and after opening the packets total 52 Challi were found, recovered material was tested with Narcotics Drug detection kit which resulted positive for Charas, the said Charas was seized and recovery memo was prepared on the spot and seized materials and vehicle in question has been taken in NCB custody, 24-24 grams of Charas were drawn and put in a small polythene pouches and heat sealed and marked as S-1 & S-2 and the said samples were further packed in a white colour envelops and after sampling, signed on both envelops of accused Sanjay Kumar and Dabal Kumar were taken and remaining contraband i.e. 1.442kg Charas was put in a polythene bag. It is moreso contended, that the preliminary enquiry from accused Sanjay Kumar and Dabal Kumar (applicant) revealed that the recovered contraband Charas was brought by Sanjay Kumar driver of Tempo Traveler from Khanabal (Srinagar) for further handing over to Dabal Kumar at Jammu the voluntarily statements of accused Sanjay Kumar and Dabal Kumar u/s 67 of the NDPS Act were recorded on 08.01.2018 wherein both the accused inter alia admitted their guilt in possession and recovery of Charas whereby accused Sanjay Kumar and Dabal Kumar were arrested on 08.01.2018 at 1800 hrs & 1930 hrs for commission of offences u/s 8/20/60 of the NDPS Act. It is contended, that both the provisions of sections 50 and 57 of the NDPS Act were complied with and samples were drawn as per the procedure, during investigation it was found that the mobile number seized from Sanjay Kumar and Dabal Kumar (applicant) viz; 9419904382 and 8713863875 and the scrutiny of the CDR revealed that accused Sanjay Kumar was in conversation with Dabal Kumar (applicant) on the aforesaid mobile number and vice-versa many a times during the period from 01.12.2017 to 08.01.2018, the complaint has been filed in the case which is pending before the court of learned 1st Additional Sessions Judge Jammu and is fixed for prosecution evidence, the applicant has committed heinous offence and there are no reasonable grounds to believe that he is not guilty of offence, the seized contraband is of commercial quantity, the case is at crucial stage of prosecution evidence and if released on bail there is every possibility of the evidence being tampered, the applicant is a resident of Nepal and in case he is enlarged on bail there is every possibility that he may flee to his Country and would not be available for trial, prayer has been made for refusal of bail. 3. Mrs. Z.S. Watali, learned counsel for the applicant while reiterating the grounds taken in the bail application, has vehemently sought release of applicant on bail by projecting arguments, that the applicant has been falsely implicated in the case as he was only standing in the parking area of Super Speciality Hospital Jammu and from his possession nothing has been recovered and only the recovery has been effected from the vehicle No. JK02V/9939 driven by co-accused Sanjay Kumar, respondent-NCB department recovered and seized alleged Charas of 1.490kg on spot on the parking area near Super Speciality Hospital Jammu but thereafter the seized drugs along with vehicle in question were taken to NCB office Gandhi Nagar Jammu. It is argued, that a homogeneous mixture was prepared and even net weight of Charas came to 1.490kg, samples were required to be drawn at the place of recovery near Super Speciality Hospital Jammu in presence of independent witnesses, I.O as per his own admission has withdrawn the samples of 24-24grams from the contraband in NCB Office at Jammu which is gross-violation of the provisions of rules of NDPS Act, the trial Court has rejected the bail of applicant in slipshod manner without appreciating the averments of bail application and came to the finding that the minor siblings of the applicant will die of starvation whereas there is no averments in the application before the trial court to this effect. It is moreso argued, that putting the applicant to the violation of mandatory provisions of Section 37 of the NDPS Act would amount to travesty of justice, applicant is lying in incarceration for the last four (4) years and only two witnesses have been recorded, applicant has been denied bail by the trial court on the ground that he is a resident of Nepal and not an Indian, even in commercial quantity Hon'ble the Supreme Court has granted bail in most of the cases, from the material on record it is manifestly clear that nothing of any contraband article has been recovered from the possession of applicant or from any place under his exclusive control, the procedure for drawing samples in terms of standing order 1/89 have not been followed which amounts to acquittal of accused, moreso a Coordinate Bench of this court vide its order dated 22.11.2022 granted bail to accused in case Phool Chand vs Narcotics Control Bureau (Bail App No. 301/2022) on the ground that no recovery was effected from him. In support of her arguments, learned counsel for the applicant has relied upon the judgments, (i) Phool Chand vs Narcotics Control Bureau (Bail App No. 301/2022), D.O.D 22.11.2022, (ii) Union of India (NCB) ETC vs Khalil Uddin [2022 Live Law (SC) 878], (iii) MD. Raja & Anr. vs State of West Bengal [Criminal Appeal No. 1293/2022 (Arising out of SLP(Crl.) No. 3133/2022)], (iv) Amani Fidel Chris vs Narcotics Control Bureau [CRL. Raja & Anr. vs State of West Bengal [Criminal Appeal No. 1293/2022 (Arising out of SLP(Crl.) No. 3133/2022)], (iv) Amani Fidel Chris vs Narcotics Control Bureau [CRL. Appeal No. 1027/2015 & CRL.M.B. 511/2019] (v) State of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh [Criminal Appeal No. 923/2022 (Arising out of SLP(Crl.) No. 9470 of 2021) D.O.D 11.01.2022] & (vi) State of Chhattisgarh vs Devendra Singh [D.O.D 14.06.2022]. 4. Sh. Vishal Sharma, learned DSGI for non-applicant/NCB has strenuously argued and sought dismissal of bail application on the grounds, that the applicant has committed very heinous offence as the quantity of contraband charas of commercial quantity weighing 1.490 kg recovered from vehicle in question was to be delivered to applicant and therefore rigor contained u/s 37 of NDPS Act applies with full vigor in the case in hand against applicant. It is argued, that very recently, Hon'ble Supreme Court has held that even if commercial quantity of Charas is not recovered from the possession of co-accused, but was to be handedover/delivered to him, the mandate of Section 37 of the Act applies and the accused is not entitled to bail. It is moreso argued, that the applicant is involved in commission of offences which carries punishment of imprisonment upto life, it is settled law that when the accused is facing trial, in the bail application detailed examination of evidence and elaborate documentation of the merits of the case are to be indicated, if the Public Prosecutor opposes the bail to a person accused of offence carrying rigor of Section 37 of the NDPS Act the Court if proposes to grant bail to such accused, twin conditions are to be mandatory satisfied viz; (i) that the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence, and (ii) that the person is not likely to commit any offence while on bail and Hon'ble the Supreme Court in so many cases has come down heavily and reversed the orders of High Courts granting bail without satisfying the twin mandatory conditions. It is vehemently argued, that drug addict is a social melody which eats into vitals of the society, drug trafficking not only eats the economy of the Country but spoils the youth of the nation, as punishment in the case in hand is upto life imprisonment there is every apprehension that applicant/accused will abscond and give a slip to law thwarting the course of justice. To support his arguments, learned DSGI has relied upon the recent judgments of Hon'ble Supreme Court rendered in(i) Union of India (NCB) ETC. vs Khalil Uddin [2022 Live Law (SC) 878] & (ii) NARCOTICS CONTROL BUREAU Vs. MOHIT AGGARWAL [CRIMINAL APPEAL NOS. 1001-1002 of 2022 (ARISING OUT OF PETITIONS FOR SPECIAL LEAVE TO APPEAL (CRL.) No. 6128-29 OF 2021]. 5. I have heard learned counsel for the parties, bestowed my thoughtful consideration to the material aspects involved in the case, have gone through the relevant law on the subject matter very carefully and considered the ratios of judgments relied by Ld. Counsel for the parties. 6. In Phool Chand vs Narcotics Control Bureau (Bail App No. 301/2022), D.O.D 22.11.2022, relied by Ld. Counsel for applicant, a Coordinate Bench of this Court granted bail to the accused Phool Chand on the ground that 12960 capsules of huge quantity of Spasmo Proxyvon plus capsules were recovered on 18.03.2020 during a naka laid near Sarore Toll Plaza Samba by the NCB from the possession of co-accused Muzaffar Ahmed Bhat who disclosed that he had purchased the said narcotics (capsules) from accused Phool Chand being a supplier. The Coordinate Bench of this Court while relying upon the judgment of Khilil Uddin's case (Supra) [2022 Live Law (SC) 878] observed that the facts of the said case were entirely different from the facts of Phool Chand's case as in Khalil Uddin's case the commercial quantity of contraband morphine weighing 13 kg was to be delivered to accused Khalil Uddin. The opinion rendered by a Coordinate Bench in Phool Chand's case (supra) is entirelydistinguishable from the facts of the case in hand, therefore, the ratio of Phool Chand's case (supra) is inapplicable to the case in hand for the reasons that commercial quantity of contraband charas of 1.490 kg Charas in the case in hand was to be delivered to applicant/accused. In Union of India (NCB) ETC vs Khalil Uddin [2022 Live Law (SC) 878] relied by Ld. In Union of India (NCB) ETC vs Khalil Uddin [2022 Live Law (SC) 878] relied by Ld. Counsel for applicant, Hon'ble Supreme Court rejected the bail of respondent/accused Khalil Uddin for the reasons that commercial quantity of contraband morphine of 13 kg recovered from a vehicle driven by co-accused Md. Zakir Hussain employed by co-accused Md. Abdul Hai was to be handed over to the accused Khalil Uddin. Ratio of Khalil Uddin's case (Supra) squarely applies to the facts of the bail application in hand and therefore, applicant cannot be held entitled for grant of bail in his favour. In MD. Raja & Anr. vs State of West Bengal [Criminal Appeal No. 1293/2022 (Arising out of SLP(Crl.) No. 3133/2022)], relied by Ld. Counsel for applicant, Hon'ble the Supreme Court granted bail to the accused found in possession of 414 kg of Ganja of commercial quantity on the ground that accused was facing incarceration for four (4) years and even the first witnesses of the prosecution was yet to be examined. Facts of the case law (Supra) are entirely distinguishable from the facts of the case in hand wherein as per his own admission, the applicant has averred in the bail application that few witnesses have been examined, therefore, ratio of M.D. Raja's case cannot be applied to the bail application in hand. In Amani Fidel Chris vs Narcotics Control Bureau [CRL. Appeal No. 1027/2015 & CRL.M.B. 511/2019] relied by Ld. Counsel for applicant, Delhi High Court while setting aside the judgment of conviction rendered by Special Judge whereby the appellant was sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1.00 lac for the offence under section 21(c) NDPS Act and while drawing an adverse inference and acquitting the accused held, that the Standing Order 1/89 was blatantly flouted by the I.O and there was no substantial compliance of the guidelines by the Investigating Agency. Ratio of the judgment (Supra) cannot be relied upon and applied to the fact of the case in hand wherein the trial of the case is at the stage of prosecution evidence and no judgment till date has been pronounced by the trial court, whether the Standing Order 1/89 has been flouted or not is a matter of trial at the time of leading evidence by the prosecution, as it is beaten law that in the bail application the detailed examination of the evidence and elaborate documentations of the merits of the case should not be indicated. In State of West Bengal vs Rakesh Singh @ Rakesh Kumar Singh [Criminal Appeal No. 923/2022 (Arising out of SLP(Crl.) No. 9470 of 2021) D.O.D 11.01.2022] relied by Ld. Counsel for applicant, Hon'ble Supreme Court granted bail to respondent who was indicted only for conspiracy whereas 76 gms of intermediate quantity of contraband cocaine was recovered from possession of co-accused Somnath Chattopadhyay, Prabir Kumar De and Pamela Goswami and while granting bail Hon'ble Supreme Court held, that for violation of intermediate quantity rigor of Section 37 of NDPS Act is not applicable. Ratio of the judgment (Supra) is distinguishable and inapplicable to the facts of the case in hand wherein applicant has been indicted for commission of commercial quantity and rigor of Section 37 of NDPS Act is applicable with full force. In State of Chhattisgarh vs Devendra Singh [D.O.D 14.06.2022] relied by Ld. Counsel for applicant, High Court of Chhattisgarh in acquittal appeal by State of Chhattisgarh wherein learned Special Judge after full-fledged trial acquitted the accused for non-compliance of Section 55 of the NDPS Act on account of possibility of tampering with the sample, the High Court opined that the learned Special Judge was absolutely justified in acquitting the accused for offence u/s 21(c) of the NDPS Act as there was total non-compliance of Section 55 of the NDPS Act. Facts of the case law (Supra) and the ratio of the judgment are entirely distinguishable than the facts of the case in hand. It is apt to mention here, that the applicant is facing trial before the court of 3rd Addl. Sessions Judge Jammu and the trial court is yet to conclude the trial. Facts of the case law (Supra) and the ratio of the judgment are entirely distinguishable than the facts of the case in hand. It is apt to mention here, that the applicant is facing trial before the court of 3rd Addl. Sessions Judge Jammu and the trial court is yet to conclude the trial. It is the domain of the trial court to render finding at the time of judgment whether the mandatory provisions of NDPS Act have been followed or flouted. The appreciation of prosecution evidence so far recorded and yet to be recorded cannot be rendered in the bail application, as law is well settled that detailed examination of evidence and elaborate documentation of the merits of the case should not be indicated in the bail order. The facts of the bail application in hand reveal that charges have been framed against the applicant and the trial is in mid way, therefore, it cannot be concluded by this court at this stage whether section 55 of the NDPS Act or other mandatory provisions have been followed or flouted. It is for the trial court to render a finding in regard to compliance or non-compliance of Section 55 or other mandatory provisions of the NDPS Act. The case laws (Supra) and the ratios of judgments deduced therein relied by Ld. Counsel for applicant in the facts and circumstances of the bail application in hand, are quite distinguishable and of no help to her, therefore, arguments urged by Ld. Counsel for applicant being legally unsustainable are repelled, discarded and rejected. 7. Ld. DSGI for non-applicant has relied upon the judgments rendered by Hon'ble Supreme Court in (i) Union of India (NCB) ETC. vs Khalil Uddin [2022 Live Law (SC) 878] & (ii) NARCOTICS CONTROL BUREAU Vs. MOHIT AGGARWAL [CRIMINAL APPEAL NOS. 1001-1002 of 2022 (ARISING OUT OF PETITIONS FOR SPECIAL LEAVE TO APPEAL (CRL.) No. 6128-29 OF 2021]. 7. Ld. DSGI for non-applicant has relied upon the judgments rendered by Hon'ble Supreme Court in (i) Union of India (NCB) ETC. vs Khalil Uddin [2022 Live Law (SC) 878] & (ii) NARCOTICS CONTROL BUREAU Vs. MOHIT AGGARWAL [CRIMINAL APPEAL NOS. 1001-1002 of 2022 (ARISING OUT OF PETITIONS FOR SPECIAL LEAVE TO APPEAL (CRL.) No. 6128-29 OF 2021]. In Mohit Aggarwal's case (Supra) the facts are, that co-accused Gaurav Kumar Aggarwal had disclosed in his voluntary statement made u/s 67 of NDPS Act that he knew where the residence and shop of respondent were located, said accused accompanied raiding team to the premises of respondent/accused and proceeded to the godown of one Promod Jaipuriya and conducted a search during which a cashe of drugs viz; 6, 64,940 tablets of different psychotropic substances including Tramadol, Zolpidem and Alprazolam tablets/capsules weighing around 328.82 kgs, 1400 Pazinc Injections amounting to 1.4 litres, 80 Corex Syrup bottles weighing 8 liters and 9,900 tablets weighing 990 grams were recovered from the premises of the co-accused Manoj Kumar at Ludhiana. Two bail applications of respondent/accused were rejected by Spl. Judge NDPS, but he filed a petition under section 439 of Cr.pc which was allowed by Single Judge of High Court of Delhi. Hon'ble Supreme Courtin the case law (Supra) while rejecting and quashing the bail granted by Delhi High Court held, that the disclosures made by respondent/accused had led the NCB team to raid the godown of co-accused Promod Jaipuriya resulting in recovery of large hall of different Psychotropic Substances, CDRs of mobile phones of co-accused including respondent showed that they were in touch with each other and the assumption that nothing was found from the possession of respondent and he is not guilty of offence for which he has been charged would be pre-mature at this stage. Again, Hon'ble Supreme Court of India in Khalil-Uddin case (Supra) [Criminal Appeal Nos. 1841-1842 of 2022 (Arising out of SLP (Crl.) Nos. 5505-5506 of 2022) D/d 21-10-2022] relying upon and considering the import and ratio of the judgments rendered in Tofan Singh vs. State of Tamil Nadu [ 2021 (4) SCC 1 ] & (NCB) Bengaluru and ors versus Palluabid Ahmad Arimutta and Anr. 1841-1842 of 2022 (Arising out of SLP (Crl.) Nos. 5505-5506 of 2022) D/d 21-10-2022] relying upon and considering the import and ratio of the judgments rendered in Tofan Singh vs. State of Tamil Nadu [ 2021 (4) SCC 1 ] & (NCB) Bengaluru and ors versus Palluabid Ahmad Arimutta and Anr. [2022 (2) JKJ 217(SC)] D/d 10-01-2022 and while setting aside/quashing the order/judgment passed by Gauhati High Court dated 19-01-2022 granting bail to respondent and other co-accused indicted in crime registered pursuant to NCB crime No. 13/2019 in respect of offences punishable Under Sections 21(c) read with 29 of The Narcotic Drugs and Psychotropic Substances Act 1985 (“The NDPS Act” for short) has held, “that though the contraband weighing 13 kg of morphine was found and recovered from a motor vehicle driven by co-accused Md. Jakir Hussain, the said contraband was to be handed over to respondent/accused Khalil-Uddin, going by the circumstances on record, at this stage on the strength of statement of Md. Nizam-Uddin though retracted later, the matter stands on different footing, in our considered view, in the face of mandate of Sec. 37 of the Act, the High Court could not and ought not to have released the accused on bail, we allow these appeals, set aside the view taken by High Court and direct both the appellants to be taken into custody forthwith”. In view of law laid down by Hon'ble Supreme Court in “Mohit Aggarwal's case” (Supra) decided on 19-07-2022 and “Khalil Uddin's case” (supra) decided on 21-10-2022, law is no longer res-integra that even if no recovery of contraband has been effected from a co-accused, but if the consignment of contraband of commercial quantity is to be handed over/delivered to the him, the co-accused can be indicted for punishment for commission of offence of abetment or party to criminal conspiracy to commit offence punishable under Section 29 of the Act relating to Narcotic Drugs and Psychotropic Substances Act and rigor/mandate of Sec. 37 of the Act is applicable. Ratios of the judgments of “Mohit Aggarwal” & “Khalil Uddin's cases” (supra) decided very recently and later in time to “Toofan Singh” & “Pallulabid Ahmad Arimutta case” having a binding effect upon all courts of the country are squarely applicable to the case in hand. Ratios of the judgments of “Mohit Aggarwal” & “Khalil Uddin's cases” (supra) decided very recently and later in time to “Toofan Singh” & “Pallulabid Ahmad Arimutta case” having a binding effect upon all courts of the country are squarely applicable to the case in hand. In the case in hand, as per the prosecution story, 1.490kg of commercial quantity of charas has been recovered on 08.01.2018 at 0800 hrs from co-accused namely, Sanjay Kumar carrying the said contraband from Kashmir Valley to Jammu concealed in a vehicle bearing registration No. JK02V/9939 (Tempo Traveler) at Super Speciality Hospital Jammu and the consignment as per confessional statement of the aforesaid accused person recorded on 08.01.2018 u/s 67 of NDPS Act was to be delivered to one Dabal Kumar (applicant) at Jammu. In view of the ratios of judgments of Mohit Aggarwal & Kahlil-Uddin cases (Supra), the mandate of Sec. 37 of the Act is attracted. In my opinion, the narrow parameters of bail available u/s 37 of the Act have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that applicant has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of offence alleged against him for him to be admitted to bail. The length of the period of custody of applicant or the fact that the chargesheet has been filed and trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the applicant u/s 37 of NDPS Act. 8. As a result of aforesaid discussion, the present bail petition being misconceived under law, is disallowed and rejected. 9. Disposed of accordingly.