IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.545 of 2008 Decided on: June 05, 2008. Mohinder Pal. …Petitioner. VERSUS State of Himachal Pradesh ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner: Mr R.L.Chaudhary, Advocate. For the respondent: Mr A.K.Bansal, Addl.A.G. Kuldip Singh, Judge (Oral) This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in F.I.R. No.501/07 dated 1.12.2007 registered at Police Station, Sadar, Mandi under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’). The status report has been filed by the respondent. 2. Heard and perused the record. The prosecution case, in brief, is that on 1.12.2007 there was prior information with the police that three persons were carrying Cocaine in Esteem car bearing registration No.CH-01K-6476 and the said car was coming from Sundernagar side and was being escorted by Maruti van bearing registration No.HP-01-2597. The information was definite, therefore, Section 42 of the Act was complied and a Naka was laid near Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… Pulgharat on national highway 21. At about 8.20 A.M. Maruti van No.HP-01-2597 came from Sundernagar side which was stopped and three young men were found sitting in the said van. On inquiry, they disclosed their names as Tilak Raj, Het Ram and Bhim Singh. The personal search of said three young men and the van was carried out and nothing incriminating was recovered from them or from the van. At about 8.40 A.M. Esteem car No.CH-01K-6476 came from Sundernagar side. In this car also, three young men were found sitting, this car was also stopped. On inquiry, the three young men sitting in the car disclosed their names as Gurdeep Singh, Ram Pal and Mohinder Pal driver. The personal search of the persons sitting in the car was carried out and from the jacket of Ram Pal which he was wearing, a polythene envelope was recovered. On further checking of the envelope, it was found to contain another polythene envelope containing Cocaine type powder. This powder was tested with the aid of testing material which was in the investigation bag and on the basis of test and experience, the said powder was found to be Cocaine weighing 570 grams. The contraband was taken into possession, sampling, sealing etc. was done. The accused were arrested. The contraband, sample etc. were deposited in the Malkhana. The report from FSL Junga was obtained and according to the said report, Cocaine was found 52.32% w/w in the sample. On completion of investigation, the challan has been presented in the Court. 3. The learned counsel for the petitioner has submitted that nothing was recovered from the person of the petitioner or from the …3… car in which the petitioner was travelling when it was allegedly checked at Naka. According to the petitioner, even as per prosecution, 570 grams of Cocaine was recovered from the pocket of jacket which Ram Pal was wearing. There is no worth believing evidence on record that alleged contraband was kept in the pocket of the jacket of Ram Pal with the consent, connivance of petitioner or even to his knowledge. There is no reliable evidence that petitioner and Ram Pal are the joint owners of alleged contraband, nor the contraband has been recovered from the conscious possession of the petitioner. He has submitted that investigation in the case is complete and continuous detention of the petitioner is not necessary in the case. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. He has submitted that prima facie bar of Section 37 of the Act for releasing the petitioner on bail is not applicable in the facts and circumstances of the case. He has contended that all the occupants of van have already been released on bail even though the prosecution case against the occupants of the van was also more or less of the same type as against the petitioner who was allegedly sitting in the car. The learned counsel for the petitioner has prayed for grant of bail to the petitioner. 4. The learned Additional Advocate General has opposed the bail application. He has submitted that the petitioner was sitting in the car in which Ram Pal was also sitting and from whose possession Cocaine weighing 570 grams was recovered. He has submitted that prima-facie involvement of the petitioner in the commission of the …4… offence has been established and the trial Court will appreciate the matter during trial. At this stage, it cannot be said that the petitioner has nothing to do with the commission of the offence. He has submitted that the petitioner cannot take the benefit from the bail orders of other accused who were sitting in the van inasmuch as neither from the van nor from the person of any occupant sitting in the van anything incriminating was recovered. 5. I have considered rival contentions of the parties. The prosecution has come forward with specific case that 570 grams Cocaine was recovered from the pocket of jacket which Ram Pal was wearing at the time of search. Prima-facie it has not been shown from cogent material on record that the petitioner was having knowledge that Ram Pal was carrying Cocaine. Similarly, it has not been shown that Cocaine was kept with Ram Pal with the active connivance and knowledge of petitioner and the petitioner is also owner of the Cocaine recovered from Ram Pal. The Cocaine has not been recovered from the conscious possession of the petitioner. In these circumstances, prima-facie bar of Section 37 of the Act for releasing the petitioner on bail is not attracted. The prosecution has not placed worth believing material on record that the petitioner will repeat the commission of offence in case he is released on bail. Accordingly, the petitioner has made out a case for grant of bail. Hence, the application is allowed and the petitioner is ordered to be released on bail in F.I.R. No.501/07 dated 1.12.2007 registered at Police Station, Sadar, Mandi under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985, on his …5… furnishing personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of learned Additional Sessions Judge, Mandi subject to the condition that petitioner shall not tamper with the prosecution evidence in any manner. 6. The observations made in the order shall not be construed as expression of opinion on the merits of the case. Copy dasti, on usual terms. June 05, 2008 ( Kuldip Singh ), J. (soni)