1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION(BAIL) NO.75 OF 2009 Shri Rajesh Anant Dhuri presently in Judicial Custody ... Applicant versus The Superintendent Customs and Central Excise and another. ... Respondents Shri S. S. Khan, Advocate for the Applicant. Shri J. Vaz, Special Public Prosecutor for Respondent No.1. Coram : N. A. BRITTO, J. Date : 2nd March, 2009. P.C.:- Heard Shri S. S. Khan, learned Counsel on behalf of the Applicant and Shri J. Vaz, learned Special Public Prosecutor for Respondent No.1. The Applicant herein has approached this Court for bail, after the same has been denied to him, by the learned Special Judge of N.D.P.S. Court, Mapusa by Orders dated 16-12-2008 and 14-1-2009. The allegation against the accused is that he was found in possession of 1010 gms.of charas. The learned Special Judge has observed that as the accused was found with commercial quantity, the provisions of Section 37 of the N.D.P.S. Act 2 could be attracted and no reason was disclosed in the bail application to consider that the accused was not guilty of such an offence. Learned Counsel on behalf of the accused submits that one does not know whether the weight of 1010 gms. of charas as found by the Seizing Officer was with or without wrappings. A perusal of the panchanama, prima facie shows, that it was without wrappings and not only that it was tested positive for charas with the aid of Field Testing Kit as well as by the report of chemical analysis, subsequently obtained, and as such the first submission of learned Counsel cannot be accepted. Learned Counsel further submits that earlier in the two replies filed by the Respondent it was always contended by the Respondent that the punishment provided could extend to ten years which would mean that the case would not be covered by Section 20(b)(ii)(C) of the Act. This submission cannot be accepted for a wrong provision of law being cited cannot be taken benefit of by the accused. Shri J. Vaz submits that in the absence of the report of the Analyst in his hands, he cannot make a submission whether quantitative analysis of the sample was done or not. However, this position need not detain us any longer. This Court vide Order dated 15-6-2006 in Criminal Miscellaneous Application No.196 of 2006 in the case of Vijaykumar Ghale v. The State had stated as under:- "When the Analyst has opined that the substance analysed by him contained charas we are bound to presume at this stage that the substance contained the active principle(THC) in the required concentration varying from 25%-40%. That apart, prima facie, in my view, the view expressed in para 7 of the Order dated 5-5-2006 would be 3 inapplicable in the case of Cannabis, for possession of which the accused is being prosecuted under Section 20(b)(ii)(C) of the Act in the light of the definition of Cannabis given in Section 2(iii) of the Act. Since charas is a derivative resin of the Cannabis plant which is otherwise known as Cannabis Sativa or Indian hemp it could be crude or purified or concentrated and it could also be with or without mixture of any neutral substance. Therefore it is not necessary to carry out any quantitative analysis to find out the actual contents of charas alone. In this view of the matter, the accused allegedly having been found with 1.354 kgs. of charas, the case of the accused would be governed by Section 37 of the Act and is bound to be looked at negatively". The facts disclosed, and, as rightly prima facie held by the learned Sessions Judge the allegation against the accused is that he has committed an offence punishable under Section 20(b)(ii)(C) of the said Act. When such is the case the Courts are bound to look negatively at a bail application filed by an accused. There is nothing positive, to prima facie show that the accused is not guilty of such an offence or that he is not likely to commit the same while on bail. The accused, therefore, would not be entitled for bail at this stage. Application is therefore rejected. N. A. BRITTO, J. RD