- (1.) THIS second bail application under Section 439 Cr. P. C. has been filed on behalf of petitioner Mohan Lal, whose first bail application was rejected vide order dated 18. 8. 2004 with the liberty to file fresh bail application after the investigation was completed.
(2.) THE petitioner is alleged to have been found in possession of contraband opium weighing 1 Kgs. and 680 Gms. , which is more than the prescribed small quantity but less than the prescribed commercial quantity. Relying upon the order passed by a co-Ordinate bench in `shaffi Mohd. & Ors. vs. State of Rajasthan (1), his learned counsel has contended that this bench should normally respect the view taken by a co-ordinate bench of this court, otherwise, there would be uncertainty and bench hunting which would not send correct message to the society at large and in view of the order/guidelines laid down in the aforesaid case by the co- ordinate bench, this bench should also grant bail to the petitioner in the instant case. He has also submitted that in case this bench is not inclined to grant bail to the petitioner, the matter may be directed to be listed before the bench which has decided the aforesaid case. Learned Public Prosecutor has opposed the bail application. I have carefully considered the submissions made at the bar and have perused the relevant record as also the aforesaid order passed by the Hon'ble co-ordinate bench and the earlier order passed by this court rejecting his similar application. It has been held in the aforesaid case as under: " Therefore, in all the cases the contravention involves for greater than small quantity but, certainly lesser than commercial quantity as notified under Section 2 of the Act, therefore, limitation on granting bail as mentioned under clause (b) of Sub-section 1 of Section 37 is not applicable in the present cases. The further point for determination is whether in such circumstances where contravention involves is greater than small quantity and lesser than commercial quantify, then any further consideration or safeguard should be taken into consideration as these offences are relating to society and public at large. In my opinion, at least two conditions should be kept in mind at the time of considering the bail applications under Section 439 Cr. P. C. were the contravention of provisions of Act involves for lesser then commercial quantity and greater than small quantity. In such matters normally, the accused persons (s) should not be released on bail till the investigation in the case is pending i. e. , till filing of charge sheet against him in court and further that no other case of identical nature is pending against him. However, it is made clear that in any particular case where contravention of provisions of Act involves lesser than commercial quantity and challan has been filed and no case identical nature or serious nature is pending accused, the court is always free to see the nature of accusation, the manner in which offence has taken place and also the gravity of offence and in such matters, the Court may refuse to release the accused persons on bail. " It is plain from a perusal of the above-said order that the Co-ordinate Bench has not laid down that in all case involving contraband articles less than the prescribed commercial quantity, the accused shall be released on bail. It may not be out of place to mention here that prior in time this bench has not only declined bail to the petitioner in this very case, but has declined bail to similarly situated accused persons in other cases wherein recovered contraband articles were less than the prescribed quantities. It is also well settled that in bail matters the orders passed by different courts cannot be taken to be as binding precedents because each matter depends on its own merits and facts and circumstances of that particular case.
(3.) IN the instant case there being no material change in the facts and circumstances of the case after the rejection of earlier bail application of the petitioner, except filing of challan, there is no warrant or justification for taking a different view form the one already taken. This apart, it cannot be gain said that the contraband article allegedly recovered from the possession of the accused has the most unwholesome effect on the health of the society at large. The likelihood of the petitioner indulging in similar activities, if released on bail, also cannot be ruled out. Therefore, despite the quantity of the contraband article being less than the prescribed commercial quantity, no case for grant of bail to him seems to be made out in the instant case. Accordingly, this bail application under Section 439 Cr. P. C. in F. I. R. No. 366/2004 P. S. Vigyan Nagar, Kota for the offence under Section 8/18 of the N. D. P. S. Act is hereby rejected. . ;