IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.537 of 2008 Decided on: July 09, 2008. Sukh Dev Singh …Petitioner. VERSUS State of Himachal Pradesh ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner: Mr Arvind Sharma, 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.76 dated 27.3.2008, registered at Police Station, Nalagarh, District Solan, under Sections 15 and 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’). It has been submitted on behalf of the petitioner that the petitioner was arrested on 27.3.2008 and he is in judicial custody since 1.4.2008. The petitioner is innocent. He has been falsely implicated in the case. The petitioner earlier filed bail application which has been rejected by learned Additional Sessions Judge, Solan on 1.5.2008. It has also been submitted that quantity of contraband allegedly recovered from the petitioner is not commercial Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… quantity, therefore, bar of Section 37 of the Act for releasing the petitioner on bail will not apply. The contraband was not recovered from the conscious possession of the petitioner. It was allegedly recovered from the cow shed which is not exclusively owned and possessed by the petitioner. The investigation in the case is complete. No purpose will be served by keeping the petitioner in custody. The petitioner is ready to furnish bonds for his release on bail. 2. The petition has been opposed by learned Additional Advocate General. He has stated that 40 kilograms of poppy husk and 300 grams of opium was recovered from the cow shed from the conscious possession of the petitioner. He has submitted that during investigation it has been established that the cow shed from where the recovery was made is owned and possessed by the petitioner and others but contraband was recovered from the conscious possession of petitioner. The Chemical Examiner has given his opinion regarding the samples which were sent for analysis, one sample was found to be of opium and the other sample of poppy straw. He has submitted that the petitioner is habitual offender. On 14.11.2006 he was convicted for possessing 1 kilogram Chura Post. On 9.9.2006 the case against the petitioner under Section 61(1)(a) of the Punjab Excise Act, 1914 as applicable to the State of Himachal Pradesh was compounded for possessing 9 bottles of country liquor on payment of composition fee of Rs.3000. The learned Additional Advocate General has placed on record photocopies of the orders whereby the petitioner was convicted earlier. The learned Additional Advocate General has submitted that the petitioner being habitual offender is likely to commit similar type of offence again if he is released on bail. He has submitted that it is not in public interest to release such person on bail even if the quantity of …3… contraband recovered from him is not commercial quantity. The learned counsel for the petitioner has submitted that the earlier cases relied by the prosecution have been decided and for releasing the petitioner on bail in the present case those cases are not relevant. He has reiterated that bar of Section 37 of the Act is not applicable, therefore, the petitioner is entitled to bail. 3. Heard and perused the record. The prosecution case is that 300 grams opium and 40 kilograms poppy husk was recovered from the conscious possession of the petitioner from his cow shed. The petitioner was earlier convicted for possessing Chura Post and case against him under the Punjab Excise Act as applicable to the State of Himachal Pradesh was compounded on payment of composition fee. In short, the past conduct of the petitioner is not clean. There is force in the contention of the learned Additional Advocate General that if the petitioner is released on bail, he is likely to repeat similar type of offence(s). No doubt bar of Section 37 of the Act is not applicable for releasing the petitioner on bail but that itself is not a ground on which the petitioner is entitled to bail. In the facts and circumstances of the case, the petitioner has failed to make out any case for grant of bail to him at this stage. Resultantly, the application is dismissed. 4. The observations made in the order shall not be construed as expression of opinion on the merits of the case. July 9, 2008 ( Kuldip Singh ), J. (soni)