[2023:RJ-JP:32974]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous 2^nd Bail Application No. 12595/2023 Ghanshyam S/o Shri Premchand Goyal, Aged About 42 Years, R/o Malakheda Darwaja Ke Bahar, Chajusingh Ki Gali Ke Pass, Police Thana Kotwali, Alwar (Raj.) (That The Accused Petitioner Is In Judicial Custody In Central Jail At Alwar Since 26.032.2023)

----Petitioner Versus State Of Rajasthan, Through Pp ----Respondent For Petitioner(s) : Mr. Kishan Swami, Mr. Vishvesh Gupta For Respondent(s) : Mr. Javed Choudhary, PP.

HON'BLE MR. JUSTICE GANESH RAM MEENA

Judgment / Order

03/11/2023

1. This 2^nd bail application has been filed by the petitioner under Section 439 Cr.P.C.

2. F.I.R. No.318/2023 was registered at Police Station Kotwali, District Alwar for the offence under Sections 8/21 and 8/22 of Narcotic Drugs and Psychotropic Substances Act, 1985.

3. Counsel for the petitioner submits that after rejection of the 1^st bail application, the Investigating Agency has completed the investigation and filed the chargesheet against the petitioner. Counsel further submits that the petitioner was having possession of 9 bottles of Corodex Cough Syrup of 100ml each and 3 bottles of Welcyrex Cough Syrup of 100ml each, which contained Codein Phosphate, 10mg in each 5ml which is less than the commercial quantity. Counsel further submits that the recovery was made on 21.03.2023 and samples were taken on 13.04.2023 and thereafter, the samples were sent for FSL report on 20.07.2023, whereas the samples should have been sent for FSL report within 72 hours for the recovery. Counsel further submits that only one sample has been taken whereas the Investigating Agency was required to take two samples of the recovered substance. Counsel further submits that the petitioner is behind the bars since 26.03.2023 and the trial will take long time, therefore, the petitioner may be enlarged on bail.

4. Learned Public Prosecutor has vehemently opposed the 2^nd bail application and states that the 1^st bail application was dismissed on 23.05.2023 by this Court and there is no material change in circumstance after filing the chargesheet. Learned Public Prosecutor further states that the recovered substance is more than the commercial quantity because whole quantity of recovered substance is to be taken into consideration and not the only part of psychotropic substance.

5. Considered the submissions put forth by counsel for the petitioner as well as the learned Public Prosecutor.

6. Taking into consideration the overall facts and circumstances of the case and more particularly the fact that the 1^st bail application of the petitioner was dismissed by this Court on 23.05.2023 on the ground that the recovery of the psychotropic substances is more than the commercial quantity. After rejection of the 1^st bail application, there is no change of circumstance except the fact that the chargesheet has been filed against the petitioner after completion of investigation. This Court in the case of Pooranmal Jat Vs. State of Rajasthan (S.B. Criminal Miscellaneous Bail Application No.9908/2023), has observed as under:

Earlier the bail application of the petitioner after consideration merits of the case was dismissed vide order dated 31.05.2023. The filing of charge-sheet cannot be said to be a material change of circumstances for consideration of the subsequent bail application without their being any change in the merits of the case.

The High Court of Madhya Pradesh at Indore in Miscellaneous Criminal Case No.50121/2022 (Kuldeep Va. The State of Madhya Pradesh Station House Officer) decided on 01.11.2020 has observed as under:- “Considering the facts and circumstances of the case, nature and gravity of allegation it is revealed that applicant’s earlier bail application was rejected on merit vide order dated 26.9.2022 passed by this Court. Mere filing of charge sheet cannot be treated as material change in circumstances. All the facts and circumstances have bee