ORDER
1. Leave granted.
2. This is an appeal by special leave against the judgment and order passed by the Bombay High Court granting bail to the accused-respondent for offences punishable under Sections 8(c)/21/25/27/27-A and 29 of the Narcotics Drugs and Psychotropic Substances Act. According to the prosecution case a quantity of 41 kg. heroin was recovered from a room which was in possession of the accused-respondent under a leave and licence agreement.
3. The learned Judge, in our view, has scrutinised the whole matter while passing the impugned order as if the trial itself has been held and the findings have been expressed in somewhat certain terms. At one place it has been observed that it is to be seen as to whether the accused-respondent was guilty or not. That degree of certainty, has not to be considered at this stage, in that connection it may be relevant to observe that the learned court has held that rent note or the leave and licence agreement which was entered into between the accused-respondent and the land-lady was a sham transaction and for holding so, reliance has been placed on the provisions of the Bombay Stamp Act to the effect that the stamp was not purchased in the name of the concerned parties but in the name of the advocate hence the agreement was inadmissible in evidence. It is also indicated that there is some difference in the amount of rent in the statement of the land-lady but we feel that it all will be a matter to be decided finally in the trial. On that basis it cannot be held that the room in question could not be possession of the accused-respondent from where huge quantity of heroin has been recovered. So far as antecedents of the accused-respondent are concerned, it is indicated that he was prosecuted earlier also for a similar offence, though acquitted. We also find that at one stage it is observed in the order that the conviction could be recorded on the statement of the accused made under Section 67 of the NDPS Act, but it has to be seen whether the same is genuine and reliable and the suspicion has been expressed on the ground that it was incomprehensible that the accused-respondent would not be taken into custody on the same day when the huge quantity of heroin was recovered on 25.9.2000 and the Department kept waiting till the next day to arrest the accused-respondent after recording the statement. May be, it may raise some doubt but at this stage it cannot be said that such an eventuality was ruled out. The prosecution has its own explanation to furnish, it has been submitted that it was thought appropriate that first the statement of the accused- respondent may be recorded in which connection he was called to the office of the Department. It is also contended on behalf of the respondent that he had to board a train at the relevant time for which he also had a reservation on his name. Suffice it to observe for the present, that apparently, the reservation was also in some other name. Learned senior counsel for the respondent contended that there was some typographical error in spelling of the name of the accused-respondent in reservation chart as also observed by the High Court. But it is seen that there was reservation in another person’s name. There may be such a possibility, as submitted, but there are two different names and apparently this plea of alibi is sought to be incorrectly raised.
4. Looking to all the facts and circumstances, and the huge recovery, in our view, the High Court has not exercised its discretion prudently and in accordance with law. We, therefore, allow the appeal, set aside the order passed by the High Court and cancel the bail granted to the accused-respondent. The accused-respondent shall surrender forthwith.
5. However, we take care to clarify that any observation made in this order shall not prejudice the case of the accused on merits in trial.