Happy vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail. It has been asserted that an FIR No. 62 of 2022, dated 24.04.2022 was registered at Police Station Banjar, District Kullu, H.P against the petitioner for the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). The petitioner was falsely implicated. The petitioner has no concern with the commission of the offence. The prosecution has citied sixteen witnesses and only five witnesses remain to be examined. The petitioner is behind the bars from the last 17 months and 14 days as on the date of the filing of petition. Two samples weighing 25 grams each were sent for chemical examination and entire bulk was not sent. The petitioner would be liable for the commission of offence for possessing 15 grams of Charas, which is a small quantity. The petitioner is permanent resident of Kullu and there is no possibility of his escaping from justice. He would abide by the terms and conditions which may be imposed by the Court. The petitioner has filed a bail petition bearing Cr.MP(M) No.2630 of 2023 earlier, which was dismissed by this Court on 01.12.2023. The Court held that copies of order-sheets were not annexed and the judgments relied upon by the petitioner not apply to the present case. The petitioner has annexed the copies of order sheets and the judgment of this Court to show that the cited judgment applies to the present case. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

The petition was opposed by filing a status report asserting that the police party was on patrolling duty and saw the petitioner with a backpack. He turned after seeing the police party. The police apprehend petitioner and searched his backpack in the presence of witnesses and recovered 1.182 kgs of Charas from his possession. The petitioner was arrested and as per the result of the chemical analysis, the substance so recovered from him was found to be Charas containing 33.46% w/w of resin in it. Eight witnesses have been examined and the matter is now listed for the examination of remaining prosecution witnesses on 17.06.2024. Hence, the status report.

I have heard Mr. Maan Singh, learned counsel for the petitioner and Mr. Baldev Singh Negi, learned Additional Advocate General, for the respondent/State.

Mr. Maan Singh, learned counsel for the petitioner submitted that the petitioner is behind the the bars for the last more than two years. The copies of order sheets and the order passed by this Court to show there is no delay on the part of the petitioner. The order passed by this Court shows that the cited judgments applied to the present case. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Baldev Singh Negi, learned Additional Advocate General submitted that there is no change in circumstances justifying the filing of the present petition. The petitioner was found in possession of commercial quantity of Charas and the rigorous of Section 37 of NDPS Act applied to the present case; therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

It is undisputed that the petitioner had earlier filed a bail petition bearing Cr.MP(M) No. 2630 of 2023, which was dismissed on 01.12.2023. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605 that once a bail application has been dismissed, subsequent bail application can only be considered if there is a change of circumstances. It was observed:

“Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. 'Between the two orders, there was a gap of only two days and it is nobody's case that during these two days, drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact situation. In such cases, it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him.

Similar is the judgment delivered in State of M.P. v. Kajad, (2001) 7 SCC 673, wherein it was observed: -

It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous 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 a review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments.

Similarly, it was held in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an earlier bail application has been rejected, the Court has to consider the rejection of the earlier bail application and then consider why the subsequent bail application should be allowed. It was held:

“11. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration, if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent bail application should be granted.”

A similar, view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380, wherein it was observed:

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.

This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458, wherein it was observed:

Before concluding, we must note that 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 the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.

It has been submitted that the petitioner could not file the copies of order-sheets as well as the material to show that the citied judgment applied to the present case.

It was held by Suresh K.M. vs. State of Kerala (02.08.2023 - KERHC): MANU/KE/1898/2023 while dealing with a case of pre-arrest bail that failure to mention the relevant evidence does not entitle a person to file a subsequent bail application without the change in circumstances. It was observed:

“8. The order granting or refusing to grant a pre-arrest bail application is final, and the entertainment of a second application essentially leads to a review of the earlier order. However, a second or subsequent application for pre-arrest bail is not completely barred. It cannot be entertained in routine as well. An accused must establish the change in the circumstances sufficient to persuade the court to invoke its extraordinary jurisdiction to maintain the application for pre-arrest bail for the second time. A material change in fact situation or law is sine qua non for a second application for pre-arrest bail. The three Judge Bench of the Apex Court in Kalyan Chandra Sarkar v. Pappu Yadav MANU/SC/0045/2005 : [(2005 (2) KLT SN 4 (C. No. 3) SC: AIR 2005 SC 921] considered the legality and propriety of successive bail applications. It was held in paragraph 20 thus:

"Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or law which requires the earlier view being interfered with or where the finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application."

Following the principles of law laid down by the Apex Court in Kalyan Chandra Sarkar (supra), this Court, in Vineeth v. State of Kerala (MANU/KE/1797/2015: 2015 (5) KHC 224), held that successive bail applications without showing any change in the fact situation or circumstance requiring the invocation of the extraordinary jurisdiction of the High Court or the Court of Session under S.438 of Cr.P.C. can only be regarded as an abuse of the process of the court. The Full Bench of the Calcutta High Court in Sudip Sen v. State of W.B. (MANU/WB/0509/2010: 2010 Cri. L.J. 4628), after reiterating the principle that there is no general bar or impediment in moving a second application for pre-arrest bail, held that a person will be entitled to move the High Court or the Court of Session for the second time only on the ground of substantial change in the facts and circumstances of the case due to subsequent events. It was clarified that the accused would not be entitled to move the second application on the ground that the Court, on earlier occasions, failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court. The Full Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan [MANU/RH/0044/2005: 2006 (1) KLT SN 15 (C. No. 25) Raj. (F.B.)] took the view that a second or subsequent application under Section 438 of Cr.P.C. can be filed if there is a change in the fact situation or law which requires the earlier view being interfered with or where the earlier finding has become obsolete. A Single Bench of this Court in Muhammed Ziyad v. State of Kerala & Another (MANU/KE/1841/2015: 2015 (4) KLJ 22) deprecated filing successive bail applications without legal justification. Another Single Bench of this Court in Pandit v. State of Kerala (MANU/KE/2611/2018: 2018 (4) KLT 249) held that subsequent application for pre-arrest bail on the same grounds without any change in circumstances is liable to be rejected even summarily.

Thus, even though there is no absolute embargo in filing the subsequent application for pre-arrest bail, it can be entertained only if there is a substantial change in the facts and circumstances of the case, which requires the earlier view to be interfered with or where the earlier finding has become obsolete. Ordinarily, the grounds canvassed in the earlier application cannot be permitted to be reurged in the subsequent application. Nor could the accused in the subsequent application contend that the Court, while considering the earlier bail application, failed to advert any fact or material on record. A fact which was not in existence at the time of considering the earlier bail application but came into existence subsequently alone could be considered a change in facts and circumstances.”

Similar considerations will apply to the regular bail application.

The previous petition filed by the petitioner was dismissed on the ground that rigors of Section 37 of NDPS Act applies to the present case, as the petitioner was found in possession of commercial quantity of Charas. This circumstance has not changed. Further, it was submitted that there is delay in conclusion of trial as only five witnesses have been examined, however, his submission is not correct because perusal of the status report clearly reveals that eight witnesses have been examined and now the matter is listed for hearing on 17.06.2024. This shows that the trial is progressing at a normal speed.

A heavy reliance was also placed upon the judgment of Hon’ble Supreme Court passed in Special Leave to Appeal (Cr.l.) No(s). 1904/2023, titled Sunil Kumar Vs. The State of Himachal Pradesh, decided on 29.03.2023, however, this judgment show show that the Hon’ble Supreme Court has granted the bail on the ground that interim bail was granted on two occasions and petitioner-Sunil Kumar had not misused the liberty of interim bail, which is not the case here. Therefore, the present judgment will not apply to the present case. Hence, the present petition fails and the same is dismissed.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.