IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.M. No. 10 of 2008. Date of decision: 7.3.2008. Jeet Ram ….. Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. M.S.Chandel, Sr. Advocate with Mr. Dinesh Thakur, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). Heard and gone through the record. 2. This is an application, under Section 439 of the Code of Criminal Procedure, for releasing the petitioner on bail in case FIR No. 244/07, dated 24.12.2007, registered at Police Station, Barmana, District Bilaspur, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act). 3. On 9.1.2008 this court directed the respondent to file reply in two weeks, which has been filed and placed on the record. The prosecution case in brief is that on 24.12.2007 at about 4.30 p.m., police party of CIA Staff, Bilaspur headed by ASI Bhoop Singh was present at Delag Galla on National highway-88 for routine checking of vehicles. Petitioner Jeet Ram alongwith co-accused Whether the reporters of the local papers may be allowed to see the Judgment? …2… Karam Dass came from Kandror side having a polythene envelop and bag respectively with them, who on seeing the police tried to run away and both were apprehended. On search Jeet Ram was found carrying charas weighing 500 grams and Karam Dass was found carrying charas weighing 500 grams and accordingly recovery of charas was made from Jeet Ram and Karam Dass. Two samples of 25 grams each were taken out from the charas recovered from petitioner. Those samples were sealed, the remaining bulk charas was also sealed. The petitioner was arrested for having committed offence under Sections 20/29 of the Act and an FIR No. 244/07 was registered at Police Station, Barmana on 24.12.2007. Two samples of 25 grams each were also taken from the charas recovered from Karam Dass and those samples were also sealed and the bulk charas recovered from him was also sealed and he was also arrested. 4. Mr. M.S.Chandel, learned Senior Counsel assisted by Mr. Dinesh Thakur, Advocate, appearing for the petitioner has submitted that petitioner has been falsely implicated in the case. As per prosecution only 500 grams charas was recovered from the petitioner, which is not a commercial quantity. As per allegations, two samples of 25 grams each were taken from the charas allegedly recovered from the petitioner. There is nothing on record that charas was in the shape of compact quantity of 500 grams in single piece. He has submitted that as per prosecution own case the petitioner was carrying charas in the form of sticks at the time of alleged recovery. The learned Senior Counsel has relied Gaunter Edwin Kircher vs. State of Goa AIR 1993 SC 1456 and Javed A. Bhat vs. Union of …3… India 2007 Crl. L.J. 3145, in support of his submission that at this stage only quantity of charas which was sent to Laboratory for chemical examination can be taken to be the quantity, which the petitioner was allegedly possessing when the recovery was made and not rest of the quantity from which no sample was taken. Therefore, it cannot be said that 500 grams charas was recovered from the petitioner. He has submitted that as per prosecution case, it emerges that police had prior information, which requires strict compliance of Section 50 of the Act. He has also submitted that in view of quantity allegedly recovered from the petitioner, bar of Section 37 of the Act for releasing the petitioner on bail is not applicable. The witnesses from the locality were not joined. He has prayed for release of the petitioner on bail. 5. The learned Additional Advocate General has opposed the bail application on the ground that the questions raised by the learned Senior Counsel appearing for the petitioner are to be seen by the trial court. This court shall not minutely go into the details of the prosecution case. He has submitted that at this stage prosecution case is to be seen as it is and whether on the facts alleged case under Sections 20/ 29 of the Act is made out or not. According to the submission of the learned Additional Advocate General no case for releasing the petitioner has been made out at this stage. He has submitted that the conduct of the petitioner is also relevant while considering the bail application. In reply, it has been stated that previously the petitioner was arrested in case FIR No. 330/06, dated 22.8.2006, Police Station, Sundernagar and 2.200 kilograms charas …4… was found in his house. However, learned Special Judge, Mandi on 3.11.2007, acquitted the petitioner in that case. Excise case on the basis of FIR No. 74/06, dated 20.6.2006, was also registered against the petitioner, under Section 61 of the Punjab Excise Act, as applicable to the State of H.P. at Police Station, Darlaghat, which was compounded in the court of learned Judicial Magistrate Ist Class, Arki. 6. The learned Additional Advocate General has submitted that the petitioner has past criminal record. The petitioner was acquitted by the learned Special Judge in the earlier case under the Act on 3.11.2007 and in present case charas was recovered from his possession on 24.12.2007. The learned Senior Counsel appearing for the petitioner has submitted that since the petitioner has been acquitted in the earlier charas case, therefore, that case is to be ignored while considering the bail application. 7. This court while granting bail on the basis of material on record is to see whether prima facie case against the petitioner is made out or not. The minute details of the prosecution case are not to be gone into. It is not possible to say at this stage whether sample charas which was taken at the time of recovery was homogeneous or it was part of one or more sticks or what was weight of individual stick. Therefore, precedents relied by the learned Senior Counsel are not applicable in the present case. Mr. Chandel has contended that police was already having prior information and independent witnesses were not joined at the time of recovery and there is non- compliance of Section 50 of the Act. All these questions and their effect is to be seen by the learned trial court during trial. No doubt, …5… bar of Section 37 of the Act is not applicable for releasing the petitioner on bail in view of quantity of charas allegedly recovered from him, but simply bar of Section 37 of the Act is not applicable, does not mean that where the quantity is not commercial quantity then in such cases, accused is automatically entitled to bail. The facts of the case as a whole are to be seen. 8. In the facts and circumstances of the case, no case for grant of bail has been made out. Accordingly, the bail application is dismissed. Any observation made herein above shall not be construed as an expression of opinion on the merits of the case. March 7, 2008. ( Kuldip Singh ) (Hem) Judge.