IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.M.P.(M) No. 1049 of 2009 Date of decision : 18.12..2009 ____________________________________________________________ Daler Singh …Petitioner. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the Petitioner : Mr. N.K. Thakur, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. A.G. with Mr. R.P. Singh, Assistant AG. Kuldip Singh, Judge (Oral) This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 122/09 dated 23.9.2009 registered at Police Station, Gagret, District Una under Section 15 of the Narcotic Drugs and Psychotropic Substances, Act, 1985. The status report has been filed. 2. Heard and perused the record. 3. The prosecution case in brief is that on 23.9.2009 statement of Kartar Singh, peon multiplicity purpose barrier NH 70 ( Excise and Taxation), Gagret was recorded. He has stated that at about 11.25 PM on 23.9.2009 a bus No.HP-21-3015 from Hoshiarpur came to Gagret side, it was stopped at the barrier and checked. ___________ Whether reporters of Local Papers may be allowed to see the Judgment ? 2 A passenger on seat No.4 behind the driver seat was holding a plastic sac, the complainant asked that passenger for checking, the said passenger said that he was carrying household articles in the sac, then he said that electrical articles are in the sac. The complainant informed Ranjit Singh Kaundal ETO. Thereupon the complainant and ETO started checking that passenger, but that passenger de-boarded the bus and started running towards Gagret with sac. However, he was overpowered at some distance. He was brought to the office and on enquiry he disclosed his name Daler Singh. On checking 10 packets were found in the sac containing some material. ETO informed the police and accordingly police reached the spot. On the basis of statement of complainant case was registered. 4. On the spot from 10 plastic packets in all 9 Kg. 980 grams poppy husk was recovered, which was taken into possession. The sealing and sampling were done on the spot. The chemical examiner report was obtained. It has come in investigation that earlier a case under the Narcotic Drugs and Psychotropic Substances Act was registered against petitioner at Railway Police Station, Jallandhar. The petitioner is habitual offender and deals in poppy husk. The petitioner had earlier filed bail application which was rejected by learned Sessions Judge, Una. On further enquiry, it was found that the petitioner was convicted by learned Sessions Judge, Jallandhar and sentenced to undergo imprisonment for six months and fine of Rs.1000/- but after three months he was released on bail and during this period he committed the present offence. The learned Addl. Advocate General has also submitted that challan has already been 3 submitted on 17.11.2009 and the charge has been framed; now the case is fixed for prosecution evidence in the court of learned Addl. Sessions Judge, Una. The learned Addl. Advocate General has submitted that the petitioner is not entitled to bail. 5. The learned counsel for the petitioner has submitted that petitioner is innocent. He has committed no offence. The petitioner has been falsely implicated in the case. The prosecution itself has alleged recovery of 9 Kg. 980 grams poppy husk from the petitioner which quantity does not fall in commercial quantity, therefore rigour of Section 37 of the Act is not applicable. The investigation in the case is complete. The petitioner is ready to furnish bail bonds in accordance with the directions of this court. The conviction of the petitioner by another court is not relevant at the time of consideration of bail application of the petitioner. The learned counsel for the petitioner has prayed for grant of bail. 6. I have heard learned counsel for the parties and gone through the record. The allegation against the petitioner is that poppy husk weighing 9kg 980 grams was recovered from him. It is the case of the prosecution that the petitioner has been convicted under the Act by Jallandhar Court and sentenced to undergo imprisonment for six months and fine of Rs.1000/-. He was released after three months on bail and during this period he committed the present offence. The submission of learned counsel for the petitioner that rigour of Section 37 of the Act is not applicable in the present case is to be considered in the light of other facts which have come on record. Simply because rigour of Section 37 of the Act is not applicable that does not mean the 4 accused is automatically entitled to bail in the present case. The petitioner has been convicted under the Act by Jallandhar court and when he was on bail he committed the present offence. This important factor is relevant while considering the bail application of the petitioner. The possibility can not be ruled out that in case the petitioner is released on bail he may commit similar type of offence. It appears the petitioner is habitual in committing offence under the Act. In the facts and circumstances of the case, the petitioner is not entitled to bail. Hence, application is dismissed. 7. The observations made in this order are for disposal of this application only and the same shall not be construed as expression of opinion on the merits of the case. December 18, 2009. (Kuldip Singh), (sks) Judge