IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.M.P.(M) No. 535 of 2011. Date of decision : 12.08.2011. ____________________________________________________________ Gulab Singh. …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. N.S.Chandel, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General with Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, Judge (Oral). This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 43/2011 dated 29.04.2011, registered at Police Station, Kotkhai, under Sections 18,20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, ( for short ‘Act’) and Section 61 of the Punjab Excise Act as applicable to the State of Himachal Pradesh. The status report filed, perused. 2. It has been stated in the application that as per prosecution on 29.04.2011, secret information was received at about 12.30 p.m. that the petitioner was carrying on illicit trade of liquor. On this, ASI Daulat Ram and others raided the house and kitchen of the __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 petitioner and recovered one box containing 12 bottles of I.M.F.L. from the house of the petitioner. On search of the kitchen, a packet containing 150 grams ‘Charas’ and 200 grams opium was also recovered. 3. On the search of the vehicle of the petitioner, 20 boxes of country liquor and 5 boxes of Super Strong Beer were recovered. On search of godown of the petitioner, 33 boxes of country liquor were also recovered. On this, case was registered. The petitioner was arrested on 29.04.2011 and since then he is in custody. It has been submitted that earlier he filed bail application which was dismissed by the learned Sessions Judge, Shimla, on 21.06.2011. Cr.M.P.(M) No. 479 of 2011 filed by the petitioner in this Court was withdrawn. The petitioner then filed the present application, in the petition it has been stated that petitioner is innocent. He has been falsely implicated in the case. There is no evidence to connect the petitioner with the commission of the alleged offence. No recoveries are to be made from the petitioner. No purpose will be served for detaining the petitioner in the custody. The petitioner is suffering from tuberculosis and is under treatment in I.G.M.C. The petitioner is not keeping good health and requires continuous medical treatment. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. 4. The bail application has been opposed by the learned Additional Advocate General. She has submitted that in the past several cases were registered against the petitioner. In the present case also, huge quantity of illicit liquor has been recovered from the petitioner along with ‘Charas’ and opium. She has stated that as per 3 Medical Board, petitioner does not require hospitalization for his disease. She has prayed for dismissal of the bail application. 5. I have considered rival contentions of the learned counsel for the parties. Mr. N.S.Chandel, Advocate, appearing on behalf of the petitioner has submitted that in all the previous cases, the petitioner has been acquitted and, therefore, prosecution cannot take advantage of cases registered against the petitioner in past. The liquor, opium and ‘Charas’ were not recovered from the conscious possession of the petitioner. The learned counsel for the petitioner has submitted that rigour of Section 37 of the Act is not applicable in view of alleged quantity of ‘Charas’ and opium recovered. In the house three brothers of petitioner, servants are also residing and, therefore, it cannot be said that anything was recovered from the conscious possession of the petitioner from that house. Insofar recovery of liquor from the vehicle and godown is concerned, the learned counsel for the petitioner has denied the same. 6. The learned Sessions Judge in his order dated 21.06.2011 has observed that as per the police record, following FIRs were registered against the petitioner:- i) FIR No. 62/85 U/s 354, 506, 34 IPC, Police Station Dhalli. ii) FIR No. 64/87 under Sections 379 IPC and Sections 41 and 42 of the Indian Forest Act, Police Station, Chopal. iii) FIR No. 79/87 under Section 379 IPC and Sections 41 and 42 of the Indian Forest Act, P.S. Chopal. iv) FIR No. 26/92 under Section 379 IPC and Sections 41 and 42 of the Indian Forest Act, P.S.Rajgarh. v) FIR No. 131/93 under Section 379 IPC and Sections 41 and 42 of Indian Forest Act, P.S.Rajgarh. 4 vi) FIR No. 186/94 under Sections 341, 323, 325 IPC, P.S.Nahan. vii) FIR No. 40/96 under Section 379 IPC and Sections 41 and 42 of Indian Forest Act, P.S. Sadar, Bilaspur. viii) FIR No. 110/98 under Section 379,34 IPC P.S. Kotkhai. ix) FIR No. 197/98 under Section 379 IPC and Sections 41 and 42 of Indian Forest Act, P.S. Sadar, Bilaspur. x) FIR No. 212/98 under Section 379 IPC and Sections 41 and 42 of Indian Forest Act, P.S.East Shimla. xi) FIR No. 9/2000 under Section 379 IPC and Sections 41 and 42 of Indian Forest Act, P.S.Kotkhai. xii) FIR No. 91/2000 under Section 379 IPC and Sections 41 and 42 of Indian Forest Act. xiii) FIR No. 40/2005 under Section 61-1-14 of the Excise Act, P.S. Kotkhai. The other accused Ram Lal driver has been released on bail by learned Sessions Judge, Shimla on 06.06.2011, but in the present case, bail has not been sought on the ground that since Ram Lal has been released on bail, therefore, the petitioner is also entitled to bail. In other words, ground of parity has not been invoked. 7. In brief, as per prosecution 45 boxes of country liquor, 5 boxes of beer, one box of IMFL, 150 grams ‘Charas’ and 200 grams opium were recovered from the house, godown/store and vehicle of petitioner. Godown is owned by Sadik Kimta, but on rent with petitioner. The learned Additional Advocate General has stated that Sadik Kimta has given a certificate that he had given one room on rent to petitioner on Himmari Road for `150/- per month. Gulab Singh at the time of taking the room on rent had stated that he would be requiring the room for store for some months. 5 8. In the site plan in the police file, the house has been shown owned by petitioner. There is nothing in the site plan that house is also owned by other brothers of petitioner. It is not the prosecution case that petitioner is co-owner of the house from where illicit liquor, ‘Charas’ and opium were recovered. 9. The Medical Board report dated 05.08.2011 indicates that petitioner was examined by the Board on 05.08.2011. The Board opined that petitioner is a known case of Post TB Fibrosis with Pulmonary Embolism with post DVT syndrome with LS for which he is getting treatment from IGMC, Shimla, regularly. It has been stated in the report that at present petitioner does not require any hospitalization. 10. On 04.07.2011 in Cr.M.P. (M) No. 479 of 2011, the following order was passed:- “No order at this stage, considering the allegations levelled against the petitioner. Learned counsel appearing for the petitioner submits that the petitioner requires regular medical aid as he is suffering from tuberculosis and ulcer. In these circumstances, it is directed that the petitioner shall be provided medical aid where facilities of such treatment exists. Petition is disposed of accordingly.” 11. The order dated 04.07.2011 indicates that bail application was not withdrawn by the petitioner as stated by the petitioner in the present application, rather the said bail application was disposed of as noticed above. Thus, this Court declined to grant bail to the petitioner on 04.07.2011 No change of circumstance has been pointed out after 04.07.2011. 6 12. In view of above discussion, no case for bail is made out, hence petition is dismissed. 13. The observations made in this judgment are for disposal of bail application only and the same shall not be construed as expression of opinion on the merits of the case. August 12, 2011 . (Kuldip Singh) (Krt) Judge.