IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.M.P.(M) No. 955 of 2009 Date of decision : 11.11.2009. Sandeep Kumar …Petitioner. Versus State of Himachal Pradesh . …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. Suneel Awasthi ,Advocate. For the Respondent : Mr. A.K.Bansal, Addl. A.G. with Mr. R.P.Singh, Assistant, Advocate General. Kuldip Singh, Judge (Oral) This is an application under Section 438 Cr.P.C. for releasing the petitioner on bail in FIR No.311 registered on 25.9.2009 at Police Station, Hamirpur under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’). Reply has been filed. 2. Heard and perused the record. It has been submitted on behalf of the petitioner that 12 grams of charas was recovered from Sanjeev Kumar real brother of petitioner from the barber’s shop ‘Safe and Style’ which is situated in the building of the petitioner and on that basis, FIR No. 311 of 2009 was registered. Sanjeev Kumar was ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 arrested and was released on bail by the Judicial Magistrate, 1st Class, Court No.III, Hamirpur on 27.9.2009. It has been submitted that petitioner has nothing to do with the shop of his brother Sanjeev Kumar. The petitioner has not been connected with the recovery of alleged contraband. It has been submitted that no recovery is to be made from the petitioner and he is ready to join the investigation. The rigor of Section 37 of the Act is not applicable. The petitioner had earlier filed Cr.MP(M) No. 864 of 2009 in this Court which was dismissed on 28.10.2009 on the ground of maintainability. 3. The bail application has been opposed by the learned Additional Advocate General. In the reply, it has been submitted that the petitioner and Sanjeev Kumar are real brothers and shop belongs to the petitioner. The investigating agency has taken the stand that both brothers Sanjeev Kumar and petitioner are involved in illegal trade of Narcotic Drugs. The learned Additional Advocate General has submitted that the bail application under Section 438 Cr.P.C. of the petitioner was rejected only on 28.10.2009 and there is no change of circumstance. The learned Additional Advocate General has submitted that the petitioner is not entitled to bail under Section 438 Cr.P.C. 4. I have considered the rival contentions of the learned counsel for the parties. In Cr.MP(M) No. 864 of 2009, on behalf of the petitioner stand was taken that the offence is bailable and therefore, the bail application was dismissed under Section 438 Cr.P.C. on the ground of maintainability. The alleged contraband was recovered on 25.9.2009. According to prosecution, 12 grams of charas was recovered from the shop. In view of the quantity of charas alleged to have been recovered, it is a case of small quantity and, therefore, rigor of Section 37 of the Act 3 is not applicable. It is the case of the investigating agency that recovery was made from the shop but at this stage it has not been shown that shop was exclusively in the possession of petitioner. The case was registered on 25.9.2009, but it appears that no effective steps were taken by the prosecution for arresting the petitioner. This indicates the interest of the investigating agency in the case. It has not been shown that any recovery is to be made from the petitioner. 5. In the facts and circumstances of the case, the petitioner has made out a case for grant of bail under Section 438 Cr.P.C. Accordingly, the application is allowed. The petitioner in the event of his arrest in FIR No. 311 of 2009 registered on 25.9.2009 at Police Station, Sadar, Tehsil and District Hamirpur under Section 20 of the Act, be released on bail on his furnishing personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of Arresting Officer. The petitioner shall report to the Investigating Officer tomorrow i.e. 12.11.2009 at 11.00 a.m. and shall continue to join the investigation as and when directed by the Investigating Officer. The petitioner shall not hamper the investigation and tamper with the prosecution evidence in any manner. 6. The observations made in this order are for the disposal of this application only and the same shall not be treated as expression of opinion on the merits of the case. Copy dasti. November 11, 2009. ( Kuldip Singh ) (GR) Judge.