Himachal Pradesh High Court
Reserved On: 18.9.2024 vs State Of Himachal Pradesh on 1 October, 2024
2024:HHC:9419
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2015 of 2024
.
Reserved on: 18.9.2024
Date of Decision: 1.10.2024.
Nasir Hussain ...Petitioner
Versus
State of Himachal Pradesh
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Ashwani Sharma, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate
General, with HC Mohinder, No.
132, Police Station Nerwa, District
Shimla, H.P.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
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') vide FIR No. 42 of 2023, dated
2.9.2023, registered at Police Station Nerwa, District Shimla,
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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H.P. As per the prosecution, the petitioner is in custody since
2.9.2023. Eleven bottles of Rukscof Syrup containing
.
Chlorpheniramine Maleate and Codeine Phosphate Syrup were
recovered by the police. Incarceration beyond one year would
amount to conviction. The contraband is a solution of sugar and
contains codeine phosphate in fractional proportion. Therefore,
the rigours of Section 37 of the ND&PS Act do not apply to the
present case. The petitioner has no criminal history. The
petitioner had filed two bail petitions one of which was
withdrawn and the second was dismissed. Four months have
elapsed since the passing of the previous order. Few of the
prosecution witnesses have been examined. There is a material
change in the circumstance. The petitioner would abide by the
terms and conditions which the Court may impose. Hence the
petition.
2. The police filed a status report asserting that the
police party intercepted a vehicle bearing No. HR-5S-1381 on
01.09.2023 at about 11:15 p.m. It was searched based on
suspicion. The police recovered 11 bottles of Rukscof Syrup
containing Chlorpheniramine maleate & Codeine Phosphate
syrup. The police seized the bottles and arrested the petitioner,
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who was driving the vehicle. He revealed on enquiry that he had
purchased 11 bottles from Suri Chauhan. The account of the
.
accused was checked and it was found that money was
transferred on eleven occasions to Surveer Singh @ Suri
Chauhan. The registered owner of the vehicle revealed that he
had sold the vehicle to the petitioner. The police arrested
Surveer Singh @ Suri Chauhan. The total weight of contraband
is 1.330 kg, which is a commercial quantity. The matter was
listed for prosecution evidence on 21.9.2024. The quantity of the
codeine phosphate was found to be 1.330 Kg., which is a
commercial quantity. Hence, it was prayed that the present
petition be dismissed.
3. I have heard Mr. Ashwani Sharma, learned counsel
for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate
General, for the respondent/State.
4. Mr Ashwani Sharma, learned counsel for the
petitioner submitted that the quantity of Codeine Phosphate
recovered from the possession of the petitioner is less than
commercial quantity and the police erred in considering the
entire cough syrup as the Codeine Phosphate. A division bench
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of this Court is seized of the question whether Codeine
Phosphate falls within the definition of manufactured drug or
.
not. The constitutional courts are not bound by the rigours of
Section 37 of the NDPS Act. He prayed that the present petition
be allowed and the petitioner be released on bail. He relied upon
the judgment of Rabi Prakash Vs. State of Odisha, Special Leave to
Appeal (Crl.) No. 4169 of 2023 and Vimal Rajput Vs. State of U.P.,
2024:AHC; LKO-42533 in support of his submission.
5. Mr. Ajit Sharma, learned Deputy Advocate General for
the respondent/State submitted that the entire quantity of the
syrup is to be treated while determining its nature under the
NDPS Act. The petitioner was found in possession of 1.330 kg of
Rukscop Syrup containing Codeine Phosphate, which is a
commercial quantity; therefore, rigours of Section 37 of the
NDPS Act apply to the present case. There are no reasons to
believe that the petitioner had not committed the offence and
will not commit the offence in case of release on bail. Hence, he
prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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7. It is undisputed that the petitioner had filed a bail
petition bearing Cr.MP(M) No. 319 of 2024, titled Nasir Hussain
.
Vs. State of H.P., decided on 30.4.2024, which was dismissed by
this Court. 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: r
"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.
8. Similar is the judgment delivered in State of M.P. v.
Kajad, (2001) 7 SCC 673, wherein it was observed: -
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8. 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.
9. 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."
10. A similar view was taken in State of T.N. v. S.A. Raja,
(2005) 8 SCC 380, wherein it was observed:
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
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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 bail
applications without there being any change of
circumstances would lead to bad precedents.
11. This position was reiterated in Prasad Shrikant
Purohit v. State of Maharashtra, (2018) 11 SCC 458, wherein it was
observed:
30. 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.
12. It was held in Ajay Rajaram Hinge v. State of
Maharashtra, 2023 SCC OnLine Bom 1551 that successive bail
application can be filed if there is a material change in the
circumstance, which means the change in the facts or the law. It
was observed:
7. It needs to be noted that the right to file successive bail
applications accrues to the applicant only on the
existence of a material change in circumstances. The sine
qua non for filing subsequent bail applications is a
material change in circumstance. A material change in
circumstances settled by law is a change in the fact
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situation or law which requires the earlier view to be
interfered with or where the earlier finding has become
obsolete. However, change in circumstance has no
bearing on the salutatory principle of judicial propriety
.
that successive bail application needs to be decided by the
same Judge on merits, if available at the place of sitting.
There needs to be clarity between the power of a judge to
consider the application and a person's right based on a
material change in circumstances. A material change in
circumstance creates in a person accused of an offence
the right to file a fresh bail application. But the power to
decide such subsequent application operates in a
completely different sphere unconnected with the facts of
a case. Such power is based on the well-settled and
judicially recognized principle that if successive bail
applications on the same subject are permitted to be
disposed of by different Judges, there would be
conflicting orders, and the litigant would be pestering
every Judge till he gets an order to his liking resulting in
the credibility of the Court and the confidence of the other
side being put in issue and there would be wastage of
Court's time and that judicial discipline requires that such
matter must be placed before the same Judge, if he is
available, for orders. The satisfaction of material change
in circumstances needs to be adjudicated by the same
Judge who had earlier decided the application. Therefore,
the same Judge needs to adjudicate whether there is a
change in circumstance as claimed by the applicant,
which entitles him to file a subsequent bail application."
13. Therefore, the present bail petition can only be
considered on the basis of the change in the circumstances and it
is not permissible to review the order passed by the Court.
14. The earlier bail petition was declined on the ground
that the petitioner was found in possession of the commercial
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quantity of codeine phosphate, therefore, rigorous of Section 37
of the ND&PS Act apply to the present case and the petitioner
.
was unable to satisfy the requirement laid down in Section 37 of
ND&PS Act. These circumstances have not changed.
15. It was submitted that the petitioner is in custody for
more than one year and there is a delay in the trial. It was
observed in Jaibunisha v. Meharban, (2022) 5 SCC 465: 2022 SCC
OnLine SC 58 that the period of custody has to be weighed with
criminal antecedent. It was observed at page 478: -
"21.6. Another factor which should guide the court's
decision in deciding a bail application is the period of
custody. However, as noted in Ash Mohammad v. Shiv Raj
Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446:
(2012) 3 SCC (Cri) 1172], the period of custody has to be
weighed simultaneously with the totality of the
circumstances and the criminal antecedents of the
accused, if any. Further, the circumstances which may
justify the grant of bail are to be considered in the larger
context of the societal concern involved in releasing an
accused, in juxtaposition to individual liberty of the
accused seeking bail."
16. Further, the petitioner has not filed copies of order
sheets showing that there is a delay on the part of the
prosecution and not on the part of the accused. Therefore, no
advantage can be derived from the delay.
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17. Reliance was also placed upon the judgment of the
Hon'ble Supreme Court in Ravi Prakash Vs. State of Orissa, SLP,
.
Crl. No. 4169 of 2023, decided on 13.7.2023, a perusal of which
shows that the petitioner was in custody for more than three
and half years. One out of nineteen witnesses had been
examined. Hence, the Hon'ble Supreme Court granted the bail to
the accused in that case.
18. In the present case, the petitioner is in custody for
about one year. As per the applicant, few of the witnesses have
been examined, therefore, it cannot be said that the trial is not
progressing and there is any unreasonable delay in the progress
of the trial.
19. It was submitted that this Court has referred to a
Division Bench to determine a question whether the Codeine
Phosphate falls within the definition of manufactured drugs
under Section 22 of the ND&PS Act, which reference is still
pending. Therefore, the petitioner is entitled to interim bail.
This submission cannot be accepted.
20. It was held in Union Territory of Ladakh v. Jammu &
Kashmir National Conference, 2023 SCC OnLine SC 1140 that mere
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reference to a larger bench does not unsettle the declared law.
The High Courts and the Tribunals should not stay their hands
.
merely because a reference was made to a larger bench. It was
observed:
"32. ....[I]t is settled that mere reference to a larger Bench
does not unsettle declared law. In Harbhajan Singh v. State
of Punjab, (2009) 13 SCC 608, a 2-judge Bench said:
"15. Even if what is contended by the learned counsel
is correct, it is not for us to go into the said question at
this stage; herein cross-examination of the witnesses
had taken place. The Court had taken into
consideration the materials available to it for the
purpose of arriving at a satisfaction that a case for
exercise of jurisdiction under Section 319 of the Code
was made out. Only because of the correctness of a
portion of the judgment in Mohd. Shafi [(2007) 14 SCC
544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR 1023 : (2007)
5 Scale 611] has been doubted by another Bench, the
same would not mean that we should wait for the
decision of the larger Bench, particularly when the
same instead of assisting the appellants runs counter
to their contention." (emphasis supplied)
33. In Ashok Sadarangani v. Union of India, (2012) 11 SCC
321, another 2-Judge Bench indicated:
"29. As was indicated in the Harbhajan Singh case
[Harbhajan Singh v. State of Punjab, (2009) 13 SCC
608: (2010) 1 SCC (Cri) 1135], the pendency of a reference
to a larger Bench, does not mean that all other
proceedings involving the same issue would remain
stayed till a decision was rendered in the reference. The
reference made in Gian Singh's case [(2010) 15 SCC 118]
need not, therefore, detain us. Till such time as the
decisions cited at the Bar are not modified or altered in
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any way, they continue to hold the field." (emphasis
supplied)
34. On the other hand, when it was thought proper that
.
other Benches of this Court, the High Courts and the
Courts/Tribunals below stay their hands, the same was
indicated in as many words, as was the case in State of
Haryana v. G D Goenka Tourism Corporation Limited, (2018)
3 SCC 585:
"9. Taking all this into consideration, we are of the
opinion that it would be appropriate if in the interim and
pending a final decision on making a reference (if at all)
to a larger Bench, the High Courts be requested not to deal
with any cases relating to the interpretation of or
concerning Section 24 of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. The Secretary-General will
urgently communicate this order to the Registrar General
of every High Court so that our request is complied with.
10. Insofar as the cases pending in this Court are
concerned, we request the Benches concerned dealing
with similar matters to defer the hearing until a decision
is rendered one way or the other on the issue whether the
matter should be referred to a larger Bench or not. Apart
from anything else, deferring the consideration would
avoid inconvenience to the litigating parties, whether it is
the State or individuals." (emphasis supplied)
35. We are seeing before us judgments and orders by High
Courts not deciding cases on the ground that the leading
judgment of this Court on this subject is either referred to
a larger Bench or a review petition relating thereto is
pending. We have also come across examples of High
Courts refusing deference to judgments of this Court on
the score that a later Coordinate Bench has doubted its
correctness. In this regard, we lay down the position in
law. We make it absolutely clear that the High Courts will
proceed to decide matters on the basis of the law as it stands.
It is not open unless specifically directed by this Court, to
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await an outcome of a reference or a review petition, as the
case may be. It is also not open to a High Court to refuse to
follow a judgment by stating that it has been doubted by a
later Coordinate Bench. In any case, when faced with
.
conflicting judgments by Benches of equal strength of
this Court, it is the earlier one which is to be followed by
the High Courts, as held by a 5-Judge Bench in National
Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC
680. The High Courts, of course, will do so with careful
regard to the facts and circumstances of the case before
it." (Emphasis supplied)
21. Thus, mere a reference to the Larger Bench will not
entitle the petitioner to bail. The court has to be guided by the
earliest judgment holding the field.
22. This Court considered the question of whether
codeine phosphate falls within the definition of a manufactured
drug or not in Praduman Justa Vs. State of H.P. (2016) Cr.LJ 3639
and after the exhaustive analysis of the various sections of the
NDPS Act, concluded that codeine phosphate falls within the
definition of manufactured drug. Hence, pending a decision by
the Larger Bench, this Court has to follow the judgment of
Praduman Justa (supra) and hold that the codeine phosphate
falls within the definition of a manufactured drug.
23. Once it is so held, the rigours of Section 37 of ND&PS
Act will apply to the present case and the Court would be unable
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to grant bail to the petitioner without satisfying that the
petitioner had complied with the requirements of Section 37 of
.
ND&PS Act.
24. It was laid down by the Hon'ble Supreme Court in
Mukesh Kishanpuria versus State of West Bengal, 2010 (15) SCC 154,
that the power to grant regular bail includes the power to grant
interim bail pending final disposal of the regular bail petition.
Such a power is inherent in the power to grant bail. It was
observed:
"3. However, the petitioner may apply for regular bail
before the Court concerned and along with the said
application, he may file an application for interim bail
pending disposal of the regular bail application. We have
made it clear on a number of occasions that the power to
grant regular bail includes the power to grant interim bail
pending the final disposal of the regular bail application.
This power is inherent in the power to grant bail,
particularly in view of Article 21 of the Constitution of India.
We are of the opinion that in view of Article 21 of the
Constitution, a person should not be compelled to go to
jail if he can establish prima facie that in the facts of the
case he is innocent." (Emphasis supplied)
25. Therefore, interim bail can be sought in cases, where
the Court has the power to grant the regular bail and interim bail
is granted to ensure that till the decision of the main case, the
petitioner is not sent to custody. In the present case, the rigours
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of Section 37 of the NDPS Act apply to the present case and it was
held in the previous petition that the petitioner was unable to
.
satisfy the rigours; hence, he is not entitled to bail.
26. It was submitted that the rigours of Section 37 of the
NDPS Act do not apply to the Constitutional Courts. This
submission is only stated to be rejected. Hon'ble Supreme Court
set aside the order of the High Court which had granted bail
without considering section 37 of NDPS Act in Dharmendra v.
State of M.P., 2006 SCC OnLine MP 26 : (2006) 1 MP LJ 436 : (2006)
4 CCR 350: 2006 Cri LR (MP) 216 and observed:
"2. Arising out of the same FIR, Criminal Appeal No 46 of
2022 was allowed by an order dated 7 January 2022
passed by this Court [Narcotics Control Bureau v. Ajeet
Kumar Yadav]. The order of the Court is reproduced below
for convenience of reference:
"Leave granted.
We have heard the learned counsel for the parties.
The impugned order is unsustainable as does not take
into consideration the statutory mandate of
Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, 'NDPS Act').
In view of the aforesaid position, the impugned order
is set aside and the respondent is directed to surrender
within a period of seven days. If the respondent does
not surrender within the aforesaid time, the
investigation officer would take immediate and
necessary steps to detain and arrest the respondent.
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We also restore B.A. No. 3081 of 2021 to the file of the
High Court with a direction to decide the bail
application afresh in accordance with law and without
being influenced by the impugned order. We clarify
.
that we have not expressed any opinion on the merits.
It will be open to the respondent to move an
application for early listing of bail application after the
respondent surrenders.
The appeal is partly allowed, setting aside the
impugned order on the aforesaid terms with the
direction of a fresh decision.
All pending applications stand disposed of."
3. The Single Judge of the High Court of Jharkhand has
allowed the applications for bail without even adverting
to the provisions of Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
4. The Office Report indicates that the respondents have
been served.
5. Following the directions which were issued on 7
January 2022 in Criminal Appeal No. 46 of 2022, we pass
the following order:
(i) The impugned orders of the High Court of
Jharkhand dated 26 July 2021 in Bail Application No
6238 of 2021 and 23 June 2021 in Bail Application
No 4881 of 2021 are set aside;
(ii) The respondents are directed to surrender
within a period of seven days and, if they fail to do
so within the stipulated period, the Investigating
Officer would take immediate and necessary steps
to detain and arrest the respondents;
(iii) Bail Application Nos 6238 of 2021 and 4881 of
2021 are restored to the file of the High Court with a
direction to decide the applications afresh without
being influenced by the impugned order; and
(iv) This Court has not expressed any opinion on
the merits of the bail applications and it will be
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open to the respondents to move an application for
early listing after they surrender.
6. The appeals are allowed in the above terms."
.
27. Therefore, it is impermissible to say that the
provision of Section 37 of the NDPS Act does not apply to the
Constitutional Courts.
28. In view of the above, the petitioner is not entitled to
bail. Hence, the present petition fails and the same is dismissed.
29. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
1st October, 2024
(Chander)
