Himachal Pradesh High Court

Reserved On: 6.9.2024 vs State Of Himachal Pradesh on 1 October, 2024

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1822 of 2024

Reserved on: 6.9.2024

Date of Decision: 11.10.2024.

    Shavta Pun                                                                   ...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. Pranshul Sharma, Advocate. For the Respondent : Mr. Jitender Sharma, Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for seeking

regular bail. It has been asserted that the petitioner was arrested

vide FIR No. 51 of 2023, dated 12.3.2023 registered with Police

Station, Sadar, Solan, District Solan, H.P. for the commission of an

offence punishable under Section 21 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short 'NDPS Act'). The

petitioner is innocent and he was falsely implicated. The

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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petitioner is the sole bread earner of the family and his family is

suffering from hardship by the prolonged custody of the

petitioner. The challan was filed before the Court and only four

witnesses have been examined. Independent witnesses have not

supported the prosecution case and no useful purpose would be

served by detaining the petitioner in judicial custody. As per the

prosecution, the petitioner was found in possession of an

intermediate quantity of heroin and the rigours of Section 37 of

the ND&PS Act do not apply to the present case. Therefore, it was

prayed that the present petition be allowed and the petitioner be

released on bail.

2. The police filed a status report asserting that the Police

were on patrolling duty when a secret information was received

that the petitioner was staying in Room No. 7 of the Hotel and was

selling heroin. In case of a search, a huge quantity of heroin could

be recovered. The information was reduced into writing and sent

to the Supervisory Officer. The police reached the hotel with the

receptionist. A search of the room was conducted, during which

one Digital Weighing Machine and 21.43 grams of heroin were

recovered. The Police seized the heroin and arrested the

petitioner. As per the result of the analysis, the substance

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recovered from the petitioner was found to be Diacetylmorphine

(Heroin). The petitioner was involved in the commission of

similar offences in the past. FIR No.72 of 2019 dated 17.09.2019 in

Police Station Kandaghat and FIR No.34 of 2021 dated 08.03.2021

were registered against him in Police Station Dhali. The challan

was prepared and presented against the petitioner on 8.5.2023.

The matter is now listed for prosecution evidence before learned

Special Judge, Solan on 4.10.2024. Therefore, it was prayed that

the present petition be dismissed.

3. I have heard Mr. Pranshul Sharma, learned counsel for

the petitioner and Mr. Jitender K. Sharma, learned Additional

Advocate General, for the respondent/State.

4. Mr. Pranshul Sharma, learned counsel for the

petitioner submitted that the petitioner is innocent and he was

falsely implicated. As per the prosecution, the quantity of heroin

recovered from the possession of the petitioner is 21.43 grams,

which is an intermediate quantity and rigours of Section 37 of the

ND&PS Act do not apply to the present case. There is a delay in the

trial. Therefore, it was prayed that the present petition be allowed

and the petitioner be released on bail.

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5. Mr. Jitender K. Sharma, learned Additional Advocate

General, for the respondent/State submitted that the petitioner

was found in possession of heroin, which is adversely affecting

the young generation of the society. Releasing the petitioner on

bail would send a wrong signal to the society and the petitioner

would indulge in the commission of a similar offence in case of his

release on bail. Therefore, it was prayed that the present petition

be dismissed. r

6. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

7. 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

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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.

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.

13. 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:

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(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].)"

8. A similar view was taken in State of Haryana vs

Dharamraj 2023 SCC Online 1085, wherein it was observed:

7. 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;

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(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.'

9. It is undisputed that the petitioner had earlier filed a

bail petition bearing Cr.MP(M) No. 2303 of 2023, titled Shavta Pun

Vs. State of H.P., decided on 30.11.2023, 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:

"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

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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.

10. Similar is the judgment delivered in State of M.P. v.

Kajad, (2001) 7 SCC 673, wherein it was observed: -

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.

11. 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."

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12. 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

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.

13. 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.

14. 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:

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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 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."

15. 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.

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16. The bail was declined to the petitioner on the ground

that he has criminal antecedents, FIRs were registered against

him for the commission of offences punishable under various

Sections of the ND&PS Act and the possibility of the repetition of

the crime in case of release on bail could not be ruled out. These

circumstances have not changed because it is not shown that the

cases registered against the petitioner have been decided.

17. It was submitted that the petitioner is in judicial

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."

18. The copies of the order sheets show that the copy of

the charge sheet was supplied to the petitioner on 30.5.2023.

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Learned counsel for the petitioner sought time to check the copies

supplied to the petitioner and the matter was listed on 3.7.2023

when the copies were stated to be complete. The charges were

framed on 26.8.2023 and the matter was listed for fixation of

evidence on 5.10.2023. Three witnesses were summoned for

2.12.2023 but none appeared. Three witnesses were examined on

10.1.2024. Learned Presiding Officer was on leave from 1.4.2024 till

3.4.2024 and the matter was listed for recording the evidence on

22.7.2024 and 24.7.2024. Two witnesses were examined on those

dates.

19. The order sheets show that six witnesses have been

examined, one adjournment was sought by learned counsel for the

petitioner and the matter was adjourned once because of the

absence of the Presiding Officer. The act of the Court will not

prejudice anyone and the prosecution cannot be faulted for the

absence of the Presiding Officer. Keeping in view the fact that six

witnesses have been examined within one year, it cannot be stated

that there is undue delay in the progress of the trial.

20. It was submitted that two independent witnesses have

not supported the prosecution case and the petitioner is likely to

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be acquitted. This submission cannot be accepted. It was laid down

in Rizwan Khan Versus State of Chhattisgarh (2020) 9 SCC 627, that

the prosecution case cannot be discarded because independent

witnesses had turned hostile when the testimonies of the official

witnesses were reliable. It was observed:

"8.2 Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the

opinion that in the present case, the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It

is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama

witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross-examined by the

defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no

law that the evidence of police officials unless supported by independent evidence, is to be discarded and/or unworthy

of acceptance."

21. It was held by this Court in Budh Ram Versus State of

H.P. 2020 Cri.L.J.4254 that independent witnesses turning hostile

is no reason to discard the prosecution version. It was observed:

"Though the independent witnesses, PW-1 Rajiv Kumar and PW-2 Hira Lal, were declared hostile and were cross- examined, however, the law in respect of appreciating the testimonies of such witnesses is well settled. Hon'ble Apex Court in titled Sudru versus State of Chhattisgarh, (2019) 8 SCC 333 relying upon Bhajju versus State of M.P.,2010 4 SCC 327, has again reiterated the well-settled principle that

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evidence of hostile witness can be relied upon by the prosecution version. Merely because a witness has turned hostile, the same does not render his evidence or testimony as inadmissible in trial and such conviction can be based

.

upon such testimony, if it is corroborated by other reliable evidence.

In a case titled Raja and Others versus State of Karnataka,

(2016) 10 SCC 506 the Apex Court observed that the evidence of a hostile witness cannot be altogether discarded and as such it is open for the Court to rely on the dependable part of such evidence which stands duly corroborated by other

reliable evidence on record.

In a case titled Selvaraj @ Chinnapaiyan versus State represented by Inspector of Police, (2015) 2 SCC 662 the Apex

Court has observed that in a situation/case, wherein, the witness deposes false in his/her cross-examination, that

itself is not sufficient to outrightly discard his/her testimony in examination-in-chief. The Court held that a conviction can be recorded believing the testimony of a such

witness given in examination-in-chief, however, such evidence is required to be examined with great caution. In Ashok alias Dangra Jaiswal versus State of Madhya Pradesh,

(2011) 5 SCC 123, has held as under: -

"the seizure witness turning hostile may not be very

significant by itself, as it is not an uncommon phenomenon in criminal trial particularly in cases relating to NDPS Act."

22. In the present case, the statements of the independent

witnesses are to be appreciated with other evidence at the time of

the conclusion of the trial. The mere fact that the independent

witnesses have not supported the prosecution case does not mean

that the petitioner was not found in possession of the commercial

quantity of the charas and the petitioner cannot claim to be

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released on bail simply because independent witnesses have not

supported the prosecution case.

23. No other point was urged.

24. Hence, the petitioner cannot be said to be entitled to

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