S.M. Soni, J.
1. This is an application for bail under Section 439 of the Code of Criminal Procedure, 1973 ('Code' for short). The petitioner is detained in judicial custody on the charge of the offences punishable under Sections 22, 23, 24 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('N.D.P.S. Act' for short) and under Sections 120-B and 120-A of the Indian Penal Code.
Heard the learned Advocates.
2. Learned Counsel Mr. Mehta appearing for the petitioner has raised a contention that in view of the judgment in the case of State of Punjab v. Balbirsingh : 1994CriLJ3702 , the information received by the officer concerned is not taken down in writing which vitiates the trial. He contended that in the instant case, the gist of the same is only taken down in writing by the officer concerned and not verbatim. He, therefore, contended that the case of the petitioner is fully covered under the judgment of Balbirsingh (supra), which is again confirmed by the Supreme Court in the case of Ali Mustafa v. State of Kerala : AIR1995SC244 , and there is no prima facie case and the petitioner should be ordered to be released on bail.
3. Bail application of the petitioner when filed before the learned Additional City Sessions Judge, being No. 810 of 1994 came to be allowed by the order dated 16-1-1995. The department, i.e., respondent No. 2, moved this Court by Misc. Criminal Application No. 671 of 1995 for cancellation of the said order and the bail granted thereunder. This Court (Coram: J.N. Bhatt, J.) by its judgment and order dated 8-3-1995 cancelled the bail. This order is further confirmed by the Supreme Court as S.L.P. came to be dismissed. The petitioner has moved this Court again for grant of bail by this application.
4. It is now a settled legal position that unless a new ground is made out, no fresh bail application can be entertained. To show that a fresh ground is available to the petitioner, learned Counsel contended that there is a total breach of Section 42(1) of the N.D.P.S. Act inasmuch as the information received by the officer concerned is not taken down verbatim, but only the gist is taken down and, therefore, there is non-compliance of the mandatory requirement of Section 42(1) of N.D.P.S. Act. This argument is based on the judgment in the case of Balbirsingh (supra).
5. The judgment in the case of Balbirsingh (supra) is reported in : 1994CriLJ3702 (September Issue). The judgment of Ali Mustafa is dated 28-9-1994 and is reported in : AIR1995SC244 . In any case, the judgment in the case of Balbirsingh was there at the time when this Court (Coram: J.N. Bhatt, J.) cancelled the bail. It is to be presumed that all the contentions which were available were raised by the party and dealt with by the Court. Therefore, simply because the change of Advocate and making out the grounds specifically alleging that it was not raised in the earlier petition, cannot be a ground to call it a new ground. If the ground available to the party is not raised, then it is to be presumed that that ground is raised and not pressed, however not referred in the judgment. Thus, in my opinion, this is not and cannot be said to be a new ground available to the petitioner.
6. As no other ground is raised, which was not available to the petitioners while previous application was decided, this application is not maintainable and is hereby dismissed. Rule discharged.