IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.M. Nos. 996 & 998 of 2009. Date of decision: November 25, 2009. 1. Cr.M.P.(M) No. 996 of 2009. Kuldeep ….. Petitioner. Vs. State of H.P. …. Respondent. 2. Cr.M.P.(M) No. 998 of 2009. Ramesh ….. Petitioner Vs. State of H.P. ….. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Anup Chitkara, Advocate with Ms. Nidhi Chawla, Advocate for the petitioner in Cr.M.P.(M) No. 996 of 2009 and Mr. M.L.Brakta, Advocate with Mr. Bipin Dass Thakur, Advocate, for the petitioner in Cr.M.P.(M) No.998 of 2009. For the Respondent : Mr. A.K. Bansal, Addl. Advocate General with Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh, Judge (Oral). Cr.M.P.(M) No. 996 of 2009 has been filed by petitioner Kuldeep and Cr.M.P.(M) No. 998 of 2009 has been filed by petitioner Ramesh for releasing them on bail, under Section 439 Cr.P.C. in FIR No. 62 dated 22.6.2009 registered at Police Station, Ani, District Whether the reporters of the local papers may be allowed to see the Judgment? …2… Kullu, under Sections 18, 20, 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act). The status report has been filed in Cr.MP(M) No. 996 of 2009. This judgement shall dispose of both the petitions. 2. Heard and perused the record. On behalf of the petitioner in Cr.M.P.(M) No. 996 of 2009, it has been submitted that petitioner was driver of the vehicle. The owner of the vehicle was Ramesh and was travelling in the vehicle at the time of alleged recovery. The petitioner cannot be attributed the knowledge of bag of Ramesh. The case against the petitioner is only under Section 29 of the Act. The investigating agency has collected no evidence so as to connect the petitioner with the commission of offence. The petitioner has been implicated on the basis of suspicion. The petitioner had earlier filed bail application, under Section 439 Cr.P.C., which has been dismissed by learned Special Judge, Rampur Bushahr on 25.8.2009. The petitioner had filed bail application being Cr.M.P.(M) No. 757/09, which has been dismissed on 8.9.2009. The present bail application has been filed on new grounds since now the challan has been filed. The prosecution case is that 2.100 Kgs. Charas and 1.500 Kgs. Opium was recovered from the vehicle. On analysis of the stuff, the quantity of charas comes to only 638.40 grams, which is less than the commercial quantity, therefore, rigour of Section 37 is not applicable. The petitioner is ready to furnish the bail bonds in accordance with the directions of this court. 3. In Cr.MP(M) No. 998 of 2009, it has been stated that it is the case of the police that petitioner on 22.6.2009 at about 3.00 p.m. …3… was travelling in vehicle bearing No. HR-55-0-914 alongwith Satpal and Kuldeep near Riun at Kullu. On checking of the vehicle 2.100 Kgs. Charas and 1.500 Kgs. Opium was recovered from the vehicle and on that basis the case was registered. It has been submitted that petitioner is innocent and he has been falsely implicated in the case. It is the case of the petitioner that no charas or opium was recovered from the petitioner, as alleged. The petitioner is in custody for the last about 6-7 months. As per Chemical Analyst, the quantity of resin in the sample of charas was found 30.40%, which comes to 640.83 grams of charas only. The quantity of resin (sic) in the sample of opium was found 1.91% which comes to 2.86 grams. The actual quantity of charas and opium after Chemical Examiner report comes to below the commercial quantity, and, therefore, Section 37 of the Act is not applicable. The petitioner is ready to furnish bail bonds in accordance with the directions of this court. It has been submitted that petitioner had filed bail application before learned Special Judge, Rampur Bushahr, which was dismissed as not pressed on 7.11.2009. On these grounds, a prayer has been made for releasing the petitioner on bail. 4. Both the petitions have been opposed by the learned Additional Advocate General on the ground that on 8.9.2009 in Cr.M.P. No. 757 of 2009 the High Court has rejected the bail application of petitioner Kuldeep in FIR No. 62 dated 22.6.2009 registered at Police Station, Ani. It has been submitted that in view of order dated 8.9.2009, no new ground for releasing the petitioners on bail has been made out. The resin content and morphine content in …4… the sample of charas and opium were noticed by this court in the order dated 8.9.2009. 5. The learned counsel for the petitioners have relied Sami Ullaha vs. Superintendent, Narcotic Central Bureau 2008 Drugs Cases (Narcotics) 705. In that case the bail granted to the appellant was cancelled vide order dated 15.3.2005. The revision filed before the High Court was also dismissed. Thereafter the matter went to the Supreme Court. The Supreme Court noticed State (Delhi Administration) vs. Sanjay Gandhi (1978) 2 SCC 411, wherein it has been held that rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by an large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to fair trial to allow the accused to retain his freedom during the trial. The Supreme Court ultimately set-aside the order dated 15.3.2005 cancelling the bail and the revision application filed in the High Court was allowed. In the present case, the cancellation of the bail is not in question, what is in question is the grant of bail. 6. The petitioner has relied State of H.P. vs. Dile Ram Latest HLJ 2008 (HP) 1411, wherein it has been held that when offending article found is less than the commercial quantity, then the rigour of Section 37 of the Act for grant of bail shall not apply. In that case also, the bail was granted by the Special Judge and order was challenged by the State in revision in the High Court. There is …5… substance in the submission of learned Additional Advocate General that merely rigour of Section 37 is not applicable then accused is not automatically entitled to bail. The facts of each case are to be considered. In the present case, the quantity of contraband allegedly recovered from the petitioners is not insignificant. The petitioners are not residents of the area where they were nabbed with the contraband. 7. The learned counsel for the petitioners have also submitted that the petitioners belong to Haryana is no ground to refuse the bail to them. The petitioners have not explained what they were doing at the place where they were intercepted and nabbed with alleged contraband when they are not residents of that area. The question that petitioners are residents of Haryana is not relevant for bail what is relevant is how they have prima facie explained their presence on the spot with alleged offending stuff. The fact cannot be denied that in Kullu area cases under the Act are increasing. The contentions raised by the learned counsel for the parties have already been considered in the order dated 8.9.2009 passed in Cr.MP(M) No. 757 of 2009 and no new ground has been raised in both the petitions by the learned counsel appearing on behalf of the parties. The filing of challan in the court in itself is no ground when all the contentions now raised on behalf of the petitioners were already considered while rejecting the bail application in Cr.M.P.(M) No. 757 of 2009 on 8.9.2009. Both the petitioners have not made out any case for grant of bail, hence both the petitions are dismissed. …6… 8. Any observation made herein above shall not be construed as an expression of opinion on the merits of the case. November 25, 2009. ( Kuldip Singh ) (Hem) Judge.