1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 1014 of 2011. Date of decision: 14.12.2011. Sh. Gulab Singh, S/o Sh. Heera Singh, R/o Village Mor Ghunda,P.O. Himri,Tehsil Kotkhai, Distt. Shimla, H.P. ......Petitioner. Versus State of H.P. ......Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. G.D.Verma, Senior Advocate with Mr. V.S.Chauhan, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General with Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh , Judge( Oral). This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No.43/2011 dated 24.04.2011, registered at Police Station, Kotkhai, under Sections 18,20 of the Narcotic Drugs and Psychotropic Substances Act, 1985( for short 'Act') and Section 61(1)(a) of the Excise Act. 2. It has been stated that petitioner has been arrested in the above case on 05.05.2011 and since then he is in custody. The allegations against the petitioner are that he had been found in possession of 150 grams of 'Charas' and 200 grams of opium. In addition, the case of the prosecution is that 45 cases of liquor, 5 cases of beer were taken from the vehicle and godown of the petitioner. The 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 petitioner is innocent, he has committed no offence. It has been stated that petitioner has been implicated in the commission of aforesaid offence at the behest of some influential persons. There is no authentic evidence available with the police for connecting the petitioner with the commission of offence. There is change of circumstance. The challan has been put in the Court for trial and the petitioner is inside the jail for more than six months. The maximum sentence for the alleged offence under the Act for which the petitioner has been arrested is upto six months. The petitioner has already spent more than six months in jail. Insofar as the Excise Act is concerned, the bail petitioner claims bail on the ground of parity as the person from whose possession the alleged liquor was recovered, has been released on bail by learned Sessions Judge, Shimla, on 06.06.2011. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. The prayer has been made for releasing the petitioner on bail. 3. The status report has been filed. The learned Additional Advocate General has opposed the bail application. It has been submitted that in the past several cases have been registered against the petitioner. In the present case, huge quantity of liquor along with some quantity of opium and 'Charas' was recovered from the petitioner. The petitioner earlier filed bail applications which have been rejected by this Court. It has been submitted by learned Additional Advocate General that challan has been submitted in the Court on 02.08.2011 and now the case has been fixed for consideration of charge on 21.12.2011. The submission has been made for rejection of the bail application. 4. I have heard Mr. G.D.Verma, Senior Advocate for the 3 petitioner and learned Additional Advocate General and have also perused the police file. Mr. Verma has submitted that petitioner is 52 years of age and is suffering from tuberculosis. It has been submitted that the prosecution case is that 200 grams of opium and 150 grams of 'Charas' was recovered from the petitioner and for committing this offence the maximum punishment is six months. This has been contradicted by learned Additional Advocate General and has submitted that punishment for the offence under the Act is 10 years in view of quantity of contraband recovered from the petitioner and notification dated 18.11.2009. 5. In judgment dated 12.08.2011 in Cr.M.P.(M) No.535 of 2011 filed by petitioner, it has been observed that the Medical Board report dated 05.08.2011 indicates that petitioner was examined by the Board on 05.08.2011. The Board opined that the petitioner is a known case of Post TB Fibrosis with Pulmonary Embolism with post DVT syndrome with LS for which he is getting treatment from IGMC, Shimla, regularly. It has been stated in the report that at present petitioner does not require any hospitalization. Thus, the contention of the learned counsel for the petitioner that petitioner is suffering from tuberculosis has no force in view of medical report noticed in the judgment dated 12.08.2011. 6. The learned counsel for the petitioner has submitted that 45 boxes of liquor were allegedly recovered from the petitioner, but samples were not taken from each bottle and, therefore, in view of Dharam Pal and another vs. State of Himachal Pradesh 2009(2) SLC 208, it cannot be said that all the 45 boxes were of liquor as the 4 Investigating Agency has not drawn sample from each bottle in the boxes. This aspect will be considered on merits during trial. 7. In the judgment dated 12.08.2011, it has been observed that earlier 13 F.I.R.s were registered against the petitioner. The learned counsel for the petitioner has submitted that the petitioner has been acquitted in all those cases. The facts remains that such cases were registered against the petitioner. It is not clear on what grounds the petitioner was acquitted in those cases. 8. The challan was submitted in the Court on 02.08.2011. Thereafter on 12.08.2011 Cr.M.P.(M) No. 535 of 2011 filed by the petitioner has been rejected and vide judgment dated 01.11.2011 in Cr.M.P.(M) No. 843 of 2011 another bail application of the petitioner has been dismissed. There is no change of circumstance. Hence, the petition is dismissed. 9. The observations made in the judgment are for the disposal of the bail application and shall not be construed as an expression of opinion on the merits of the case. ( Kuldip Singh ), Judge. December 14, 2011. (Krt)