Rajesh Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition seeking regular bail. It has been asserted that the petitioner was arrested for the commission of an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) registered vide FIR No.140 of 2023 dated 25.07.2023 at Police Station Barotiwala, District Solan. The petitioner had filed a bail petition, which was dismissed on 29.11.2023. The petitioner is filing the present bail application because of changed circumstances, as he is facing serious health issues in the judicial custody. The petitioner did not have the police challan previously and the present petition has been filed after the perusal of the charge sheet. As per the prosecution case, the petitioner was found in possession of 960 tablets of Lomotil weighing 60.48 grams and 720 capsules of Pyeevon Spas Plus weighing 473.76 grams. The petitioner had met with an accident and suffered multiple fractures. Rod was inserted in his leg, which requires immediate surgery. The petitioner requires constant medical attention, which is not possible in judicial custody. The petitioner is undergoing treatment in Government Hospital, Chandigarh in Sector 32. The petitioner is a handicapped person and is suffering from a locomotor disability. The petitioner has no concern with the recovered contraband. The wife and daughters of the petitioner are dependent upon him. The link evidence is missing. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 25.07.2023 when they received a secret information at 2:30 pm that the accused Rajesh Kumar had kept the drugs in his shop. The police completed the formalities and searched the shop of the accused in the presence of independent witnesses. The accused was found present in the shop.

The police searched the shop and found a carry bag containing 960 tablets of Lomotil, and 720 capsules of Pyeevon Spas Plus. The weight of 10 tablets of Lomotil was found to be 0.63 grams and the weight of 10 capsules of Pyeevon Spas Plus was found to be 6.58 grams. In this manner, the total weight of Lomotil tablets was found to be 60.48 grams and the total weight of Pyeevon Spas Plus capsules was found to be 473.76 grams. The police seized the drugs and arrested the petitioner. The drugs were sent to SFSL, Junga and the result of the analysis shows that the exhibit stated as Lomotil was a sample of Diphenoxylate tablet and the exhibit stated as the capsule of Pyeevon Spas Plus indicated the presence of Tramadol. The challan has been filed before the Court. As per the result of the analysis, the total weight of the Lomotil tablet was found to be 61.440 grams and the total weight of Pyeevon Spas Plus Capsules was found to be 403.200 grams. The petitioner was involved in the commission of a heinous offence; hence, the status report.

I have heard Mr. Suneel Awasthi, learned counsel for the petitioner and Ms. Seema Sharma, learned Deputy Advocate General, for the respondent/State.

Mr. Suneel Awasthi, learned counsel for the petitioner submitted that the present petition has been filed on changed circumstances. The health condition of the petitioner is not proper and he requires treatment, which is not possible in the jail; therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

Ms Seema Sharma, learned Deputy Advocate General for the respondent/State submitted that the petitioner was found in possession of a commercial quantity of Tramadol and the rigours of Section 37 of the NDPS Act apply to the present case. The health condition of the petitioner is being taken care of in the jail; therefore, she prayed that the present petition be dismissed.

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

The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-

“12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.’

The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

It is undisputed that the petitioner has filed a bail petition i.e. Cr.MP(M) No.2429 of 2023 titled as Rajesh Kumar vs. State of H.P., which was dismissed on 29.11.2023. 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.

The previous petition was dismissed on the ground that the petitioner was found in possession of commercial quantity of Tramadol and the rigours of Section 37 of the NDPS Act apply to his case. This circumstance has not changed. It is also not the case of the petitioner that he had met with an accident after the dismissal of the earlier bail petition. Hence, there are no changes in the circumstances justifying the filing of the present petition.

Consequently, the present petition fails and the same is dismissed.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.