IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.701 of 2008 Decided on: July 21, 2008. Budhia Ram. …Petitioner. VERSUS State of Himachal Pradesh ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner: Mr N.K.Thakur, Advocate. For the respondent: Mr A.K.Bansal, Addl.A.G. Kuldip Singh, Judge (Oral) The petitioner has filed this application under Section 439 Cr.P.C. for releasing him on bail in F.I.R. No.80 registered on 4.4.2008 at Police Station, Sadar, Chamba under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’). The status report has been filed by the respondent. 2. Heard and perused the record. The case against the petitioner, in brief, is that on 4.4.2008 at about 6.30 a.m. 2 kilograms Charas was recovered from the conscious possession of the petitioner and after obtaining report from Forensic Science Laboratory Junga challan has been filed in the Court on 25.6.2008. The petitioner is in judicial custody. Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… 3. The learned counsel for the petitioner has submitted that the petitioner was arrested on 4.4.2008 on the allegations that 2 kilograms Charas was recovered from his possession. The investigation in the case is complete and the chemical examiner has opined that sample contains resin 32.40%. It has been submitted that the petitioner earlier filed bail application which has been rejected by learned Fast Track Court, Chamba on 4.7.2008. The learned counsel for the petitioner has relied Dharam Pal versus State of H.P. Latest HLJ 207 (HP) 827 for releasing the petitioner on bail on the ground that in view of the chemical examiner report in the present case the quantity of Charas from the contraband allegedly recovered from the petitioner comes to 648 grams. The learned counsel for the petitioner has submitted that in these circumstances bar of Section 37 of the Act is not applicable and the petitioner is entitled to bail. The learned counsel for the petitioner has further submitted that the petitioner is ready to furnish bail bonds in terms of the directions of this Court and no purpose will be served to keep the petitioner in custody for indefinite period. The trial of the case is likely to take some time. The petitioner is resident of village Gontu, Tehsil Churah and shall always be available even after bail, if granted. 4. The learned Additional Advocate General has opposed the bail application and has submitted that the petitioner was found in possession of 2 kilograms of contraband and according to the chemical analyst the entire mass of sample is of Charas. He has submitted that at this stage it cannot be said that what is the quantity of Charas in the contraband. The learned Additional Advocate …3… General while opposing the bail application has submitted that in case the petitioner is released on bail he is likely to influence the prosecution witnesses. 5. I have considered the rival contentions of the learned counsel for the parties. In the present case, from the police file report of chemical examiner has been perused, relevant portion of which reads as under:- “And the quantity of Resin as found in the Laboratory of sample 32.40% W.W. The result thus obtained is given below. The Entire mass of exhibit is a sample of CHARAS. This Court in Cr.M.P.(M) Nos.611 and 630 of 2008 decided on 7.7.2008 has considered similar chemical examiner report. The chemical examiner has given resin content and thereafter has opined that the entire mass is a sample of Charas. The implication of such report will be seen during the trial but prima facie in view of Dharam Pal’s case (supra), the Charas contents in the sample comes to 648 grams in the present case which is less than the commercial quantity. The bar of Section 37 of the Act is not applicable in such a situation. There is nothing on record about the past conduct of the petitioner. There is no allegation in the status report that in case the petitioner is released on bail he is likely to commit again similar type of offence. There is general allegation in the status report that in case the petitioner is released on bail he is likely to influence the prosecution witnesses, but such allegation has not been supported by specific …4… material. In any case, in such situation, law will take its own course if the petitioner will attempt to terrorize prosecution witnesses. 6. In the facts and circumstances of the case, the petitioner has made out a case under Section 439 Cr.P.C., hence, the application is allowed. The petitioner is ordered to be released on bail in F.I.R. No.80 dated 4.4.2008 registered at Police Station, Sadar, Chamba, under Section 20 of the Act, on his furnishing personal bond in the sum of Rs.40,000/- with one surety in the like amount to the satisfaction of the learned Special Judge, Chamba subject to the condition that the petitioner shall not tamper with the prosecution evidence in any manner. 7. The observations made in the order shall not be construed as expression of opinion on the merits of the case. Copy dasti, on usual terms. July 21, 2008 ( Kuldip Singh ), J. (soni)