IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.756 of 2008 Decided on: August 04, 2008. Anil Kumar …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 Ajay Kochhar, Advocate. For the respondent: Mr Anshul 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.29 dated 2.4.2006 registered at Police Station, Anni, District Kullu under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’). The respondent has filed the status report. 2. Heard and perused the record. The prosecution case against the petitioner, in brief, is that on 2.4.2006 1.750 Kgs Charas was recovered from the bag which the petitioner was carrying on his shoulder. On chemical analysis, the resin content in the contraband was found Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… 35.89% and the chemical analyst gave opinion that the contraband contains the contents of Charas. The learned counsel for the petitioner has submitted that in view of 35.89% resin content in the contraband the whole of the recovered stuff 1.750 Kgs was not Charas but quantity of Charas in 1.750 Kgs is to the extent of 35.89% and, therefore, quantity of Charas allegedly recovered from the petitioner comes more than small quantity but less than commercial quantity. He has submitted that bar of Section 37 of the Act is not applicable for releasing the petitioner on bail, the petitioner is ready to furnish the bonds in accordance with the directions of this Court, if he is released on bail. The learned counsel for the petitioner has submitted that the petitioner is in custody since 2.4.2006 and till now the prosecution has not led evidence in the case. He has submitted that no purpose will be served by keeping the petitioner in Jail for indefinite period. The learned counsel for the petitioner has relied judgment dated 7.7.2008 of this Court in Cr.M.P.(M) Nos.611 and 630 of 2008. It has been submitted on behalf of the petitioner that earlier petitioner had filed bail application which was rejected by learned Sessions Judge, Kinnaur on 11.12.2007. It has been submitted that the facts of the bail petitioner were mixed up with the facts of other cases which were decided by a common order dated 11.12.2007, therefore, learned …3… Sessions Judge erred in rejecting the bail application of the petitioner. It has also been submitted that thereafter Cr.M.P.(M) No.716 of 2007 for granting bail to the petitioner was filed in this Court which was withdrawn, again Cr.M.P.(M) No.25 of 2008 was filed in this Court which was also withdrawn on 27.3.2008. The petitioner thereafter filed another bail application in the Court of learned Sessions Judge, Kinnaur which was also dismissed on 4.6.2008. It has been submitted that the bail application dated 4.6.2008 was dismissed mainly on the ground that the petitioner belongs to State of Haryana. The learned counsel for the petitioner has submitted that consideration of geographical areas for rejection of the bail application is not valid in law and for this purpose he has relied on Moti Ram and others versus State of Madhya Pradesh, AIR 1978 SC 1594 and Sanjay alias Bablu alias Keja versus State of Gujarat, (2002) 10 SCC 403. The learned counsel for the petitioner has submitted for releasing the petitioner on bail. 3. The learned Additional Advocate General has opposed the bail application on the ground that the petitioner had earlier filed four bail applications which were rejected by the Courts. It has also been submitted that huge quantity of 1.750 Kgs contraband was recovered from the petitioner. The exact quantity of Charas in the contraband will be seen during trial. The petitioner belongs …4… to Haryana and it will be very difficult to secure his presence for trial in case he is released on bail. 4. I have considered rival contentions of the learned counsel for the parties. Insofar as the filing of the bail applications one after the other are concerned, the accused has right to file bail applications but in the subsequent bail application the petitioner will have to show change of circumstance or a new case which was not considered earlier. In the present bail application, the contention of the petitioner is that even if at this stage it is taken that 1.750 Kgs contraband was recovered from the petitioner still actual quantity of Charas in that contraband, according to the Chemical analyst, is 35.89% and, therefore, actual quantity of Charas in the sample comes to more than small quantity but less than commercial quantity of Charas. In these circumstances, bar of Section 37 of the Act is not applicable. In Cr.M.P.(M) No.611 of 2008 and Cr.M.P.(M) No.630 of 2008, this Court released the petitioners on bail on 7.7.2008 after taking into consideration Chemical Examiner report according to which the quantity of Charas in those cases comes to more than small quantity and less than commercial quantity though in Cr.M.P.(M) No.611 of 2008 contraband recovered was 1.600 Kgs and in Cr.M.P.(M) No.630 of 2008 the contraband recovered was 2.700 Kgs. In the present case also, the quantity of Charas as per Chemical Examiner …5… report in view of 35.89% resin content found in the sample comes to more than small quantity and less than commercial quantity even though contraband recovered is 1.750 Kgs, therefore, bar of Section 37 of the Act is not applicable. The Supreme Court in Moti Ram and others versus State of Madhya Pradesh and Sanjay alias Bablu alias Keja versus State of Gujarat (supra) has held that refusal to grant of bail merely on the ground that the appellant hailing from another State is not justified. The petitioner has made out a case for grant of bail. Accordingly, the application is allowed and the petitioner is ordered to be released on bail in F.I.R.No.29 dated 2.4.2006 registered at Police Station, Anni, District Kullu under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 on his furnishing personal bond in the sum of Rs.40,000/- with two sureties in the like amount to the satisfaction of the learned Special Judge, Kinnaur Sessions Division and at least one surety shall be from District Shimla with the further condition that the petitioner shall not tamper with the prosecution evidence in any manner. 5. 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. August 04, 2008 ( Kuldip Singh ), J. (soni) …6…