IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION ( BAIL ) NO. 97 OF 2008 FRANCIS S. CHAND PRESENTLY LODGED AT JUDICIAL LOCK-UP PANAJI ... Applicant Versus STATE REPRESENTED BY OFFICER INCHARGE CID/CB POLICE STATION PANAJI ... Respondent Mr. J. P. D'Souza, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for the State. Coram:- N. A. BRITTO, J. Date:- 9th June, 2008 P.C.:- Heard Mr. J. P. D'Souza, learned Counsel on behalf of the Applicant and Ms. Winnie Coutinho, learned Public Prosecutor on behalf of the Respondent. The applicant herein was arrested on 7-11-2006 and is being prosecuted in Special Criminal Case No.2/2007 as A-3. Charge has already been framed on 9-7-2007 against the applicant and other co-accused under different Sections. As far as the applicant/A-3 is concerned, charge has been framed under Section 20(b)(ii)(B), Section 25 r/w Section 29 of the N.D.P.S. Act, 1985. The allegation of the prosecution is that the first three accused namely Vinod, Satish and the applicant hatched a criminal conspiracy to purchase charas from Panvel and thereafter proceeded to Panvel in a car driven by the applicant/A-3 and purchased charas from A-4/Asif and A-5/Abdul and concealed the same in the said car and brought it to Goa where it was seized from the possession of A-1. There is no dispute that as per the prosecution the deal was made by A-1 and A-2 and was financed by the latter and the purchase was made from A-4 and A-5 and ultimately the charas weighing 780 gms. were found in possession of A-1. An application for bail having been filed to the N.D.P.S. Court by the applicant/A-3, the same came to be rejected by Order dated 28-2-2007. The learned Special Judge in rejecting the application noted that A-1 was found in possession of a variable quantity and being so it was within the discretion of the Court either to grant or refuse bail depending upon the facts of each case. Considering that the applicant along with the other two accused entered into a conspiracy, went to Panvel and purchased the said charas and then returned back and thereafter tried to sell the same to prospective purchasers was a reason good enough to reject bail as such sale would effect the entire society. Learned Counsel on behalf of the applicant/A-3 submits that the prohibition contained in Section 37 of the Act is not applicable as the quantity involved is not commercial quantity. Learned Counsel further submits that this Court in the past was pleased to grant bail in cases which almost touched commercial quantities and in this context a reference has been made to Order dated 6-5-2005 in Criminal Miscellaneous Application No. 70/2005 in which the quantity involved was 916 gms. of charas and Order dated 8-6-2006 in Criminal Miscellaneous Application No. 226/2006 in which the quantity involved was 740 gms. of charas. On the other hand, learned Public Prosecutor on behalf of the Respondent while conceding that the provisions of Section 37 of the Act are not applicable to the facts of the case submits that the applicant/A-3 has also been charged under Section 29 which deals with abetement of criminal conspiracy and which provides for punishment which is equal to the punishment provided for the main offence. The maximum punishment provided for whether under Section 20(b)(ii)(B) of the Act or Section 29 of the Act is imprisonment for a term which may extend for ten years and fine which may extend to One lakh rupees. Considering the decisions cited on behalf of the applicant and further considering the role played by the applicant/A-3, in my view, the applicant cannot be denied bail. Hence, the application is granted. The applicant shall be released on bail upon execution of a bond of Rs.15,000/- with one surety in the like amount to the satisfaction of the learned Special Judge, N.D.P.S. Court at Mapusa with a further condition that the applicant/A-3 (i) shall not commit any offence similar to the offence as alleged against him and (ii) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or tamper with the evidence. N. A. BRITTO, J. RD.