Pawan Kumar vs State Of Himachal Pradesh

Sushil Kukreja, J

The instant bail application has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (Cr.P.C.) for grant of bail in case FIR No.167/2022, dated 30.10.2022, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (for short, ‘NDPS Act), registered at Police Station Bhawarna, District Kangra, H.P.

Brief facts of the case, as per the status report filed by the respondent-State, are that on 30.10.2022 a rukka was received at Police Station Bhawarna that on 29.10.2022, at about 9:15 P.M., while police party was on routine patrolling duty near a place Drang, it received a secret information that one white coloured Kiger car, without number plate, was parked in pine jungle on a link road adjacent to National Highway Praour, in which, one woman namely Bimla Devi and one man namely Pawar Kumar were sitting, who were in the process of selling charas/cannabis and if search of the said vehicle was conducted, a huge quantity of charas/cannabis could be recovered. Accordingly, police party went in search of the aforesaid persons and at about 9:40 P.M., when it reached the spot, two persons were found in the vehicle. On asking, the man sitting on the driver seat, disclosed his name as Pawan Kumar (petitioner herein) and woman sitting on the co-driver seat, disclosed her name as Bimla Devi. Both the accused persons were asked as to what they were doing in the jungle, however, they could not give any satisfactory answer. On suspicion, the police associated Vikram and Bhupinder Singh as independent witnesses in the proceedings, in whose presence, the vehicle in question was checked and underneath the co-driver seat, one yellow coloured carry-bag was recovered. On opening of the said bag, four packets wrapped with brown tape were found. In the said packets, a dark- brown coloured hard substance in the shape of sticks was recovered, which was found to be charas/cannabis. On weighment, the recovered contraband was found to be 2 Kg & 09 grams. During further checking of the vehicle, underneath the footmat of the driver seat, one yellow coloured bag was found. On opening of the said bag, currency notes of Rs.80,000/-, i.e. 158 notes of the denomination of Rs.500/-and five notes of the denomination of Rs.200/- were recovered. Thereafter, the police completed all the codal formalities and consequently, FIR as detailed hereinabove was registered against the accused persons and they were arrested.

The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. Learned counsel for the petitioner contended that the petitioner is a taxi driver and he has nothing to do with the recovery of contraband and the link evidence is completely missing. He further contended that the petitioner is in judicial custody for the last more than one year and the trial is not going to be completed in near future, therefore, the petitioner deserves to be released on bail on the ground of delay in trial.

Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail. It is submitted that the present is a successive bail application and the scope for its entertainment is very narrow. Considering the serious offence and the role attributed to the petitioner and in absence of the petitioner having pointed out any changed circumstances i.e. actual and factual change in circumstances, the present application may not be entertained.

I have heard the learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record of the case. Pertinently, the present is the successive bail application filed by the petitioner. Earlier, the petitioner had preferred a bail application being Cr.MP(M) No.475 of 2023 before this Court, seeking regular bail, which came to be dismissed vide order dated 13.04.2023, as this Court was of the opinion that the quantity of the contraband involved was 2 kgs & 09 gms, which was a commercial quantity and considering the provisions of Section 37 of the Act of 1985, the bail application was not entertained.

It is a well settled principle of law that when the successive application comes before the Court, the Court would be very conscious while considering the same. As held by the Apex Court in the State of Maharashtra v. 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 him 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.

This Court, confronted Mr. Yashveer Singh Rathore, learned counsel for the petitioner, to point out the change in circumstances after the dismissal of the earlier bail application. The only argument which the learned counsel for the petitioner has advanced is that the petitioner is in custody since 30.10.2022. However, as per the status report filed by the prosecution, the case is listed for evidence of the prosecution before the learned trial Court on 27.12.2023, as such, now the trial may not take a long time to conclude. After the dismissal of the regular bail application, there is no change in the circumstances which would entitle the petitioner to file the present application. Therefore, in absence of any changed circumstances, only on the ground that the petitioner is in jail since 30.10.2022, the present successive application for bail cannot be entertained. The application is hereby 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.