Balwinder Singh alias Chiri vs State Of Himachal Pradesh

Sushil Kukreja, J

The instant bail application has been filed by the petitioner under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, for grant of bail in case FIR No. 36/2023, dated 01.02.2023, under Sections 21, 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘ND & PS Act’), Section 201 of the Indian Penal Code (hereinafter referred to as the ‘IPC’) and Sections 181, 184, 192 and 196 of the Motor Vehicles Act (hereinafter referred to as the ‘MV Act’) registered at Police Station Nurpur, District Kangra, H.P.

The brief facts of the case, as per the reply/status report filed by the respondent-State are that on 31.01.2023, at about 5:20 P.M., while the police party was on routine patrolling duty and was present at place Jachh, they received a secret information that a black Verna car bearing registration No. PB-02-EE-2607 was coming from Fatehpur side and going towards Jassur side, in which, two occupants namely Vishal Kumar, son of Sh. Lakhwinder Kumar and Rohit Kumar, son of Sh. Buaa Dass, were travelling alongwith huge quantity of chitta/heroin and cash. Subsequently, the police party, associated Atul Sharma as independent witness in the proceedings and laid a nakka; and at about 6:00 P.M., when the aforesaid vehicle was seen going towards Jassur Main Chowk, the same was signaled to stop, but the driver of the vehicle did not stop the car and tried to run away, as a result of which, the said vehicle struck against the road divider and got stopped. Thereafter, policy party reached near the vehicle and apprehended the persons sitting therein and the said vehicle was taken near the Police Assistance Room Jassur as there was traffic jam on account of road construction. In the meantime, SDM Nurpur Sh. Gursimran and Tehsildar Nurpur Sh. Sandeep Kumar reached the spot and were associated as independent witnesses in the proceedings. In presence of the aforesaid witnesses, the occupants of the car disclosed their names as Vishal Kumar and Rohit Kumar. During search of the car, underneath the co-driver seat, a handbag was found. On opening the same, a packet, containing two transparent polythene packets was found. When the said packets were opened and checked, in one packet a grey coloured solid substance and in another packet white and grey coloured substance in the form of powder was recovered, which was found to be chitta/heroin. Thereafter, the police recovered another polythene packet, which was kept on the rear foot mat of the car, in which, the currency notes were kept. The police party also checked the dashboard of the car and recovered a bowl, a steel spoon, a mini electronic weighing machine, empty transparent polythene packets, rubber bands and 7 strips of Alprazolam IP 0.5 mg, out of which, 5 strips were sealed and were containing 15 tablets each and two strips were containing 13 and 12 tablets, respectively. On weighment, the recovered heroin was found to be 1.100 Kgs, whereas, a sum of Rs. 13,20,330/- was also recovered from the accused persons. After completion of necessary codal formalities, FIR detailed hereinabove was registered against both the accused and they were arrested on 01.02.2023. During investigation, accused Rohit Kumar disclosed that on 28.01.2023, he sold 1 kg heroin to Balwinder alias Chiri (petitioner herein), whereas, accused Vishal Kumar disclosed that on 29.01.2023 and 30.01.2023 he sold 500 gmschitta/heroin to one Abhishek Kumar alias Babboo. On 07.02.2023, a police team visited the house of the petitioner, however, he was found absconded. On 08.02.2023, police team went in search of accused Abhishek Kumar @ Baboo and nabbed him from room No. 5 of Man Dhaba at Mukeriyan. Thereafter, the police conducted the search of his house and recovered 31.14 gms of chitta/heroin and he was arrested. On 23.03.2023, on a tip off, the police party went in search of the petitioner and arrested him on 24.03.2023 from Onam Guest House Katra at about 2:40 A.M. (midnight). During interrogation, the petitioner got recorded his statement and also got identified the place from where he had purchased the chitta/heroin from accused Rohit Kumar. On 29.03.2023, the petitioner also got recovered Rs. 35 lakhs which were kept by him with Gagan Sarna Jeweller at Model Town Pathankot.

Learned counsel for the petitioner contended that the petitioner is innocent and he has been falsely implicated in this case. He further contended that since investigation of the case is complete and the charge-sheet has also been filed before learned Trial Court, no fruitful purpose will be served by keeping the petitioner in further custody.

Per contra, the learned Additional Advocate General has opposed the application on the ground that the petitioner is involved in the serious offence of illicit trade of narcotics and keeping in view the nature and gravity of the offence, this is not a fit case to enlarge the petitioner on bail. He further contended that the present bail application filed by the petitioner is a fourth successive one, which is liable to be dismissed as there is no change in circumstances after the dismissal of his earlier bail applications.

I have heard learned counsel for the petitioner as well as learned Additional Advocate General for the State and also carefully gone through the material available on record.

Pertinently, the present is a fourth successive bail application filed by the petitioner. Earlier, he had preferred bail application, bearing Cr. MP(M) No. 1733 of 2023, before this Court, seeking regular bail, which was withdrawn by him vide order dated 02.01.2024. Thereafter, another bail application bearing Cr. MP(M) No. 451 of 2024, was filed by the petitioner, which came to be dismissed vide order dated 17.05.2024, as this Court was of the opinion that the petitioner has failed to satisfy the conditions for grant of bail as provided under Section 37 of the NDPS Act coupled with the fact that four more cases under the NDPS Act have already been registered against him at different police stations which prima facie indicates that he is a habitual offender and is involved in the illicit trade of narcotics. Subsequently, the petitioner preferred third bail application, bearing Cr. MP(M) No. 1549 of 2024, which also came to be dismissed vide order dated 06.09.2024, as this Court was of the opinion that there is no substantial change in the circumstances which would entitle him to file the present application.

It is a well settled principle of law that when the successive bail application comes before the Court, the Court would be very conscious while considering the same. As held by the Hon’ble Apex Court in State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for getting bail in successive bail application. The Court should not pass the order of releasing the accused on bail in successive bail application merely establishing some cosmetic change between time gap of two applications. There should be drastic change during the period between two applications,which would entitle the accused for bail.

In State of M.P vs. Kajad (2001) 7 SCC 673 Hon'ble Supreme Court categorically considered that when there are no changed circumstances, the successive bail application is nothing but review of the earlier application which cannot be maintainable. The relevant portion of the aforesaid judgment reads as under:

“8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. case No. 2052 of 2000 on 5.6.2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held 8 ( 2024:HHC:10460 ) by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa ((2001) 1 SCC 169) and various other judgments.”

In State of Tamilnadu vs. S.A.Raja (2005) 8 SCC 380 Hon'ble Supreme Court has held that:

“9. When a learned Single Judge of the same Court had denied bail to the respondent for certain reasons and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of the bail applications without there being any change of circumstances would lead to bad precedents.”

In the case of Kalyan Chandra Sarkar,vs Rajesh Ranjan (2004) 7SCC 528 Hon'ble Supreme Court held as follows:

“20. "Before concluding, we must note though an accused has a right to make successive applications for grant of bail, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications………."

In Virupakshappa Gouda & another vs. State of Karnataka and another (2017) 5 Supreme Court Cases 406 Hon'ble Supreme Court held that:

“12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to Say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge- sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge……….”

A perusal of the aforementioned judgments indicates that successive bail applications are permissible under the changed circumstances but the change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier application. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.

This Court, confronted Mr. Udayanand Sharma, learned counsel for the petitioner, to point out the change in circumstances after the dismissal of the earlier bail applications. However, he has failed to point out any substantial change in the circumstances after the dismissal of his earlier bail applications, which would entitle the petitioner for release on bail.

In view of the facts and circumstances of the present case, this Court is of the view that after the dismissal of the earlier bail applications, there is no substantial change in the circumstances which would entitle the petitioner to file the present application. Therefore, in absence of any changed circumstances, the present successive application for bail cannot be entertained. Moreover, the petitioner is a habitual offender and four more cases under the NDPS Act have already been registered against him at different police stations. Furthermore, there is every likelihood of the petitioner’s absconding from justice, if released on bail, as one of the co-accused Vishal Kumar, who was granted interim bail by this court on the ground of his sister’s marriage w.e.f. 14.06.2023 to 23.06.2023, did not surrender himself before the Jail Authorities and had absconded since then.Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed.

Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.