IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.465 of 2009. Date of decision: 22.6.2009 Prem Kumar ………. Petitioner Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Ashish Sharma, Advocate. For the Respondent: Mr. Ansul Kumar Bansal , Additional Advocate General. Kuldip Singh, Judge. (Oral) 1. This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No.87 dated 24.10.2008 registered at Police Station, Nirmand under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short, the Act). Status report filed, heard and perused the record. 2. The prosecution case in brief is that on 24.10.2008 HC Hans Raj and others were patrolling Chanai Gad near road Sarahan Kainchi at about 1.30. p.m. A man with black and red bag on his shoulder was coming on foot towards Bagi Pul. On seeing police party he became nervous, he turned towards back side and without any passage he started Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 moving fast down below the road. On suspicion he was overpowered by HC Hans Raj with the help of others. On enquiry the said man disclosed his name Prem Kumar aged 42 years. The place was isolated, there was no person nearby. The bag which Prem Kumar carrying was searched, a polythene envelope was found in the bag which was wrapped in two cloths. It was also checked and from polythene envelope charas in the shape of sticks and rounds weighing 2 Kg. was found. The sampling and sealing was done on the spot. A ruka was sent for registration of the case. The petitioner was arrested. The Chemical report dated 29.11.2008 from State Forensic Science Laboratory, Junga was obtained wherein quantity of resin was found 29.18% W/W. The learned counsel for the petitioner has submitted that in view of Chemical Examiner report showing quantity of resin 29.18% W/W in the sample the actual quantity of charas in the contraband allegedly recovered from the petitioner comes to 583 grams which is less then the commercial quantity. The rigour of Section 37 of the Act is not applicable. The petitioner is in custody since 24.10.2008 . The petitioner had earlier filed bail application which was wrongly rejected by learned Sessions Judge, Kinnaur Sessions division at Rampur Bhushar. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. 3. The learned Addl. Advocate General has opposed the bail application on the grounds that the huge quantity of charas was recovered from the petitioner. Therefore, the petitioner is not entitled to bail even if the quantity of charas is to be taken 29.18% W/W in the contraband. The petitioner is originally from Nepal, there is possibility of his jumping bail in case he is released on bail. The bail application of petitioner was rejected on 14.5.2009. There is no change of circumstance. The challan has already been presented in the Court and now case is fixed for 3 evidence on 21.6.2009 before Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr. 4. I have considered the rival contentions of learned counsel for the parties. The prosecution case is that 2 Kg. charas was recovered from the petitioner. The Chemical Examiner has reported the quantity of charas 29.18% W/W in the recovered stuff. The petitioner is resident of Nepal. There is substance in the apprehension of the prosecution that in case the petitioner is released on bail then it will be difficult for the prosecution to procure his presence in the Court for trial. The bail application of the petitioner was rejected by learned Sessions Judge on 14.5.2009, the petitioner has failed to make out a case for grant of bail. Resultantly, bail application fails and is accordingly dismissed. 5. The observations made in this order are for disposal of this application and these shall not be treated as expression of opinion on the merits of the case. . ( Kuldip Singh) Judge June 22, 2009 (sks)