ORDER

This is first application on behalf of the applicant under Section 439 of the Code of Criminal Procedure for grant of bail in relation to Crime No. 105/2022 registered at Police Station-Crime Branch, Bhopal for the offence under Section 8/20 of the NDPS Act. The applicant is in jail since 26.06.2022.

2. Learned counsel for the applicant submits that as per the case of the prosecution, the applicant and other accomplice were arrested when they were travelling on an auto carrying some narcotic substance. After intercepting them, the police made a search of the said auto whereupon the police seized three-three packets each from the applicant and other accomplice, which they were carrying in a backpack. After opining the said packets and smelling the substance kept in the packets, on the basis of experience, the police suspected the said substance to be Charas.

After weighing alongwith the packets seized from the present applicant, the weight of the said contraband was 01 Kg. and 500 Gms. and after removing the polythene, the weight of the said contraband was 01 Kg.

485 Gms. Accordingly, the offence was registered against the accused persons.

3. Learned counsel for the applicant submits that despite granting several opportunities, Investigating Officer has not been examined so far. The FSL report has although come but the said report is silent in respect of presence of actual percentage of tetrahydrocannabinol in the sample and as such he submits that in the light of the order dated 05.04.2024 passed by the Division Bench in CRA No. 7056/2056-Dilip Kumar Vs. State of Madhya Pradesh granting bail to accused relying upon the decision rendered in the case of State of Himachal Pradesh vs. Roshan Lal reported in 2010 SCC OnLine HP 2554, the bail application of the present application may also be considered and allowed.

4. Per contra, learned counsel for the State has opposed the submission made by the learned counsel for the applicant and submitted that merely because FSL report does not reveal the actual percentage of tetrahydrocannabinol does not mean that the bail application can be considered only on this ground. He submits that let the IO be examined so that he may disclose about this aspect. He has submitted that the order on which the learned counsel for the applicant is placing reliance has been passed in a criminal appeal filed against conviction and the application for suspension of sentence has been allowed by the Court taking note of other relevant facts, which have been placed and proved by the prosecution during trial and the court while considering the application may have also taken note of the period of jail sentence already suffered by the appellant therein.

5. I have heard the arguments advanced by the learned counsel for the parties and also perused the case diary and other material available on record. On examining the overall facts and circumstances of the case at hand and considering the grounds raised by learned counsel for both the parties for granting and rejecting the bail, I feel it appropriate to first take note of the observation made by the Division Bench while granting bail in the case of Dilip Kumar (supra), which is as under:-

“According to Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in case of bhang, the percentage of tetra hydro cannabinolin is 15%. In case of of ganja, it is from 15% to 25% and in case of charas, it is from 25% to 40%. In the given case, in the absence of any such percentage determined in respect of tetra hydro cannabinoli, it cannot be conclusively said that the recovered contraband was ganja only. Out of total sentence of 15 years, the appellant has already undergone 7 years and 6 months of actual sentence.

Learned counsel for the appellant places reliance upon State of Himachal Pradesh vs. Roshan Lal 2010 SCC OnLine HP 2554 wherein, it has held as under:-

"29. As noticed hereinabove, the only tests, wh