Crl.Misc No M- 27651 of 2010 Balvir Singh @ Bira V. State of Punjab Present: Mr.Tapan Kumar,Advocate, for the petitioner. Mr.Gaurav Garg Dhuriwala, AAG, Punjab. *** Order This petition for grant of regular bail has been filed on behalf of petitioner Balvir Singh @ Bira in case FIR No. 84 dated 24.7.2009 registered under Sections 18/21/61/85 of N.D.P.S.Act at Police Station, Sultanpur Lodhi, District Kapurthala. Notice of motion was issued on 5th October, 2010. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case. As per allegations in the FIR, three persons were riding on TVS Motor-cycle and were talking with another person namely, Pankaj who was standing on the road. The police party stopped them and alleged recovery i.e. 1 kg. opium was effected from each of the three accused namely, Pankaj, Mukesh and Gurlal Singh and 1 Kg. Opium and 1 kg. smack was recovered from the present petitioner. The said recovery was effected from the right and left dubs of the trouser worn by the petitioner. Learned counsel for the petitioner also submits that there is violation of mandatory provisions of N.D.P.S.Act. Although an independent witness was joined in the investigation but seals were not handed over to him and the same remained with the police. The tampering of record and seals could not be ruled out. Form No.29 was not filled up at the spot which is the mandatory requirement. Learned counsel for the State opposes the bail on the Crl.Misc No M- 27651 of 2010 [2] ground that recovery of 1 kg opium and 1 kg. smack is commercial quantity. Provisions of Section 37 of N.D.P.S.Act are attracted in the case. Earlier bail application filed by the petitioner was dismissed as withdrawn on 21st July, 2010 and he is in custody since 24th July, 2009 only. Heard the arguments of learned counsel for the parties and have also perused the contents of the FIR and other documents available on the file. As per case of the prosecution, the police was on patrolling duty and three persons were sitting on a motor-cycle bearing Registration No. PB-09-E-3427 and they were talking with each other and one person was standing nearby them. The driver of the motor-cycle disclosed his name as Gurlal and other person sitting along with the driver disclosed his name as Balbir Singh alias Bira and the third person disclosed his name as Mukesh Kumar and the person who was standing nearby, disclosed his name as Pankaj. An independent witness Balbir Singh was joined in the raiding party. Offer was also given to the accused persons to the search to be conducted before some gazetted officer or the Magistrate. One Kg.opium and one Kg. smack was recovered from the present petitioner which is commercial quantity. Moreover, the earlier bail application filed by the petitioner was dismissed as withdrawn on 21st July, 2010 and no new ground has been made out by the learned counsel for the petitioner for grant of bail at this stage. The argument of learned counsel for the petitioner that Crl.Misc No M- 27651 of 2010 [3] no mandatory provisions were followed in the case and Form No. 29 was not filled up at the spot, is a matter of evidence which can be raised only on the basis of evidence available on record. Nothing has been shown by the learned counsel for the petitioner as to how the seal was not handed over to the independent witness after its use is also subject-matter of evidence which would be seen at the time of recording of evidence and on production of the relevant record. In absence of any evidence, it cannot be said that there is violation of the mandatory provisions of N.D.P.S.Act and for granting bail, it is to be seen that the allegations mentioned in the FIR are presumed to be correct and still no case is made out against the present petitioner or it is a case that the petitioner has been implicated falsely. All these arguments were raised at the time of hearing earlier bail application filed by the petitioner and when the Court was not satisfied with the contentions raised by the learned counsel for the petitioner, the same was dismissed as withdrawn. Keeping in view the seriousness of the offence, custody of the petitioner and dismissal of earlier bail application, no fresh ground is made out to grant bail at this stage and the petition being devoid of any merit is hereby dismissed. However, it is made clear that any observation made here-in-above shall not be construed as an expression of opinion on the merits of the case. (DAYA CHAUDHARY) January 07, 2011 JUDGE raghav