Point of Law: Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence.

ORDER :

1. Heard learned advocate Mr. Ijaj Qureshi for learned advocate Mr. Kartik V. Pandya for the applicant and learned Assistant Government Pleader Mr.Hardik Soni for the respondent-State through video conference.

2. This is a successive bail application under Section 439 of the Code of Criminal Procedure, 1973 in connection with the offences registered under Section8(C), 21(C) and 25 of the Narcotics Drugs Psychotropic Substance Act, 1985 (for short ‘the NDPS Act’).

3. The applicant after filing of the chargesheet preferred Criminal Misc. Application No.1915 of 2020, which was withdrawn after arguing the same for some time and the following order was passed.

“Heard learned advocate Mr. Shivangkumar K. Trivedi for the applicant and learned Additional Public Prosecutor Ms. Chetna M. Shah for the respondent State through video conferencing.

After arguing for some time, learned advocate Mr. Shivangkumar K. Trivedi for the applicant seeks permission to withdraw this application.

Application stands disposed of, as withdrawn.”

4.1 The brief facts of the case are that a complaint was filed against the applicant alleging that applicant is in business of selling codeine medicine illegally and therefore, his premises along with two panchs was raided on the secret information received by the complainant and during the course of the raid, raiding party found 1240 bottles containing codeine of 100 ml each being total value of Rs.1,51,389/.

4.2. After the seizure, the officers of the Forensic Science Laboratory were called and after testing, the “codeine” was found in all sealed packed bottles. The samples were drawn from the six packets containing the cough syrup containing codeine and after the samples were drawn and muddamal was sealed properly.

4.3. The applicant filed Criminal Misc. Application No.619 of 2009 in the Court of Principal Sessions Judge, Panchmahal for regular bail, which was rejected. Thereafter, the applicant filed Misc. Criminal Application No.803 of 2019 before the Principal Judge, Panchmahal, after filing of the chargesheet, which was rejected on 8th January 2020.

4.4. The applicant thereafter, preferred the above stated Criminal Misc. Application No.1915 of 2020 before this Court, which was withdrawn on 3rd June 2020 after arguing the matter.

5.1. Learned advocate Mr. Ijaj Qureshi appearing for learned advocate Mr. Kartik V. Pandya submitted that the applicant has been wrongly arraigned for the alleged offences under the NDPS Act. It was submitted that the contraband which is recovered is more than small quantity but less than commercial quantity as one bottle contain only 10 mg codeine phosphate IP and therefore, total comes to only 12.4 grams and therefore, the applicant is required to be enlarged on regular bail considering the quantity of the codeine in the seized material.

5.2. Learned advocate further submitted that the statements recorded during the course of investigation also do not implicate the applicant and it has come out from the chargesheet papers that the applicant was not going to sell the cough syrup and therefore, the applicant should be enlarged on bail.

5.3. It was further submitted that the bottles recovered from the applicant are cough syrup containing 10 mg codeine phosphate and therefore, the seized material recovered from the applicant does not fall within the definition of commercial quantity.

5.4. Learned advocate also submitted that the prosecution has not recorded any statement of the person who has purchased the cough syrup from the applicant and there is no corroborative evidence against the applicant. It was also submitted that there is noncompliance of Sections 42 and 50 of the NDPS Act, which is mandatory in nature.

5.5. It was further submitted for the query raised by the Court that what are the changed circumstances for preferring the successive bail application that after passing of the order dated 3rd June 2020, the trial has not proceeded and it is not likely to proceed in view of the CO