The right to bail under Section 167(2), Proviso, of the Code of Criminal Procedure, 1973, is not available to an accused person who has not exercised his right to do so earlier.

P. K. MISRA, J.

( 1 ) THIS is an application under S. 459 of the Code of Criminal Procedure (hereinafter referred to as the " Cr. P. C. " ).

( 2 ) THE petitioner is in jail custody since 7-5-1992 on the allegation that he has committed offence under S. 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "n. D. P. S. Act" ). It is alleged that the petitioner along with another accused person was found in possession of brown sugar. The petitioner had earlier filed Crl. Misc. Case No. 3404 of 1995 which was withdrawn by the petitioner for the purpose of filing another application before the trial Court on the ground of contravention of S. 167 (2), Proviso, of the Cr. P. C. The subsequent bail petition of the petitioner having been rejected by the Addl. Sessions Judge on 1-2-1996, the petitioner filed Cri. Misc. Case No. 813 of 1996. The said application was dismissed on technical ground as wrong case number had been indicated and thereafter the present bail application has been filed.

( 3 ) AT the threshold it was submitted on behalf of the learned standing counsel that the previous applications for bail filed by the petitioner having been rejected on earlier occasions, the present application could not be entertained. The submission of the learned standing counsel is unacceptable. As earlier indicated, the first bail application by the petitioner numbered as Cri. Misc. Case No. 3404 of 1995 was withdrawn to enable the petitioner to file a fresh application before the trial Court. The subsequent bail application numbered as Cri. Misc. Case No. 813 of 1996 was not dismissed on merit but on a technical ground and opportunity had been given to the petitioner to file fresh application giving the correct case member. Moreover, law is well settled that rejection of a bail application at an earlier stage does not preclude an accused person to file a fresh application, keeping in view the change in circumstances.

( 4 ) THE learned counsel for the petitioner first submitted that the co-accused Viswajit Pande having been released on bail, the petitioner against whom similar allegations have been made may be released on bail. On perusal of various materials on record including the previous cases, it appears that the said co-accused was released on bail by applying the provision of S. 167 (2), Proviso, of the Cr. P. C. Though it is reasonable to expect that the two co-accused persons similarly situated should be treated alike as far as practicable. It is not an inexorable rule. If the co-accused person would have been released on bail on merit, I would have considered such a plea of the present petitioner. Since the co-accused person was released on the ground of non-compliance of S. 167 (2), Proviso, of the Cr. P. C. I am not inclined to accept this submission. The learned counsel for the petitioner faintly raised the question of applicability of S. 167 (2), Proviso, of the Cr. P. C. to the facts of the present case, but in view of the decision of the Supreme Court reported in (1996) 10 OCR (SC) 265 : (1996 Cri LJ 1652), Dr. Bipin Shantilal Panchal v. State of Gujarat, he abondoned such an argument. As has been held in the aforesaid decision of the Supreme Court, since the right of petitioner to avail of the provision of 167 (2),proviso, of the Cr. P. C. has not been exercised, the petitioner is not entitled to be released on bail, applying the said provision at this stage, as charge sheet has already been filed.

( 5 ) THE learned counsel for the petitioner then submitted that in the absence of any prima facie case and since the mandatory provisions of Ss. 42 and 50 of the N. D. P. S. Act have not been complied with, the petitioner should be released on bail. Keeping in view the embargo imposed under S. 37 of the N. D. P. S. Act and the materials on record, I am not in a position to accept this submission of the learned counsel for the petitioner.

( 6 ) LASTLY, it is submitted that the petitioner is in