Himachal Pradesh High Court
Reserved On: 25.10.2024 vs State Of Himachal Pradesh on 29 October, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 ( 2024:HHC:10460 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 2233 of 2024
Reserved on: 25.10.2024
Decided on: 29.10.2024
Balwinder Singh alias Chiri ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram:
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
_____________________________________________________
For the petitioner : Mr. Udayanand Sharma, Advocate.
For the respondent : Mr. Navlesh Verma, Additional
Advocate General with Mr. Raj Negi
and Ms. Niyati Thakur, Deputy
Advocates General.
Sushil Kukreja, Judge
The instant bail application has been filed by the
petitioner under Section 483 of Bharatiya Nagarik Suraksha
Sanhita, 2023, for grant of bail in case FIR No. 36/2023, dated
01.02.2023, under Sections 21, 22 & 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred
to as the 'ND & PS Act'), Section 201 of the Indian Penal Code
(hereinafter referred to as the 'IPC') and Sections 181, 184,
192 and 196 of the Motor Vehicles Act (hereinafter referred to
as the 'MV Act') registered at Police Station Nurpur, District
Kangra, H.P.
1 Whether reporters of Local Papers may be allowed to see the judgment?
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2. The brief facts of the case, as per the reply/status
report filed by the respondent-State are that on 31.01.2023, at
about 5:20 P.M., while the police party was on routine
patrolling duty and was present at place Jachh, they received
a secret information that a black Verna car bearing registration
No. PB-02-EE-2607 was coming from Fatehpur side and
going towards Jassur side, in which, two occupants namely
Vishal Kumar, son of Sh. Lakhwinder Kumar and Rohit Kumar,
son of Sh. Buaa Dass, were travelling alongwith huge quantity
of chitta/heroin and cash. Subsequently, the police party,
associated Atul Sharma as independent witness in the
proceedings and laid a nakka; and at about 6:00 P.M., when
the aforesaid vehicle was seen going towards Jassur Main
Chowk, the same was signaled to stop, but the driver of the
vehicle did not stop the car and tried to run away, as a result of
which, the said vehicle struck against the road divider and got
stopped. Thereafter, policy party reached near the vehicle and
apprehended the persons sitting therein and the said vehicle
was taken near the Police Assistance Room Jassur as there
was traffic jam on account of road construction. In the
meantime, SDM Nurpur Sh. Gursimran and Tehsildar Nurpur
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Sh. Sandeep Kumar reached the spot and were associated as
independent witnesses in the proceedings. In presence of the
aforesaid witnesses, the occupants of the car disclosed their
names as Vishal Kumar and Rohit Kumar. During search of
the car, underneath the co-driver seat, a handbag was found.
On opening the same, a packet, containing two transparent
polythene packets was found. When the said packets were
opened and checked, in one packet a grey coloured solid
substance and in another packet white and grey coloured
substance in the form of powder was recovered, which was
found to be chitta/heroin. Thereafter, the police recovered
another polythene packet, which was kept on the rear foot mat
of the car, in which, the currency notes were kept. The police
party also checked the dashboard of the car and recovered a
bowl, a steel spoon, a mini electronic weighing machine,
empty transparent polythene packets, rubber bands and 7
strips of Alprazolam IP 0.5 mg, out of which, 5 strips were
sealed and were containing 15 tablets each and two strips
were containing 13 and 12 tablets, respectively. On
weighment, the recovered heroin was found to be 1.100 Kgs,
whereas, a sum of Rs. 13,20,330/- was also recovered from
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the accused persons. After completion of necessary codal
formalities, FIR detailed hereinabove was registered against
both the accused and they were arrested on 01.02.2023.
During investigation, accused Rohit Kumar disclosed that on
28.01.2023, he sold 1 kg heroin to Balwinder alias Chiri
(petitioner herein), whereas, accused Vishal Kumar disclosed
that on 29.01.2023 and 30.01.2023 he sold 500
gmschitta/heroin to one Abhishek Kumar alias Babboo. On
07.02.2023, a police team visited the house of the petitioner,
however, he was found absconded. On 08.02.2023, police
team went in search of accused Abhishek Kumar @ Baboo
and nabbed him from room No. 5 of Man Dhaba at Mukeriyan.
Thereafter, the police conducted the search of his house and
recovered 31.14 gms of chitta/heroin and he was arrested. On
23.03.2023, on a tip off, the police party went in search of the
petitioner and arrested him on 24.03.2023 from Onam Guest
House Katra at about 2:40 A.M. (midnight). During
interrogation, the petitioner got recorded his statement and
also got identified the place from where he had purchased the
chitta/heroin from accused Rohit Kumar. On 29.03.2023, the
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petitioner also got recovered Rs. 35 lakhs which were kept by
him with Gagan Sarna Jeweller at Model Town Pathankot.
3. Learned counsel for the petitioner contended that
the petitioner is innocent and he has been falsely implicated in
this case. He further contended that since investigation of the
case is complete and the charge-sheet has also been filed
before learned Trial Court, no fruitful purpose will be served by
keeping the petitioner in further custody.
4. Per contra, the learned Additional Advocate
General has opposed the application on the ground that the
petitioner is involved in the serious offence of illicit trade of
narcotics and keeping in view the nature and gravity of the
offence, this is not a fit case to enlarge the petitioner on bail.
He further contended that the present bail application filed by
the petitioner is a fourth successive one, which is liable to be
dismissed as there is no change in circumstances after the
dismissal of his earlier bail applications.
5. I have heard learned counsel for the petitioner as
well as learned Additional Advocate General for the State and
also carefully gone through the material available on record.
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6. Pertinently, the present is a fourth successive bail
application filed by the petitioner. Earlier, he had preferred bail
application, bearing Cr. MP(M) No. 1733 of 2023, before this
Court, seeking regular bail, which was withdrawn by him vide
order dated 02.01.2024. Thereafter, another bail application
bearing Cr. MP(M) No. 451 of 2024, was filed by the petitioner,
which came to be dismissed vide order dated 17.05.2024, as
this Court was of the opinion that the petitioner has failed to
satisfy the conditions for grant of bail as provided under
Section 37 of the NDPS Act coupled with the fact that four
more cases under the NDPS Act have already been registered
against him at different police stations which prima facie
indicates that he is a habitual offender and is involved in the
illicit trade of narcotics. Subsequently, the petitioner preferred
third bail application, bearing Cr. MP(M) No. 1549 of 2024,
which also came to be dismissed vide order dated 06.09.2024,
as this Court was of the opinion that there is no substantial
change in the circumstances which would entitle him to file the
present application.
7. It is a well settled principle of law that when the
successive bail application comes before the Court, the Court
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would be very conscious while considering the same. As held
by the Hon'ble Apex Court in State of Maharashtra Vs.
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 the accused
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.
8. In State of M.P vs. Kajad (2001) 7 SCC 673
Hon'ble Supreme Court categorically considered that when
there are no changed circumstances, the successive bail
application is nothing but review of the earlier application
which cannot be maintainable. The relevant portion of the
aforesaid judgment reads as under:
"8. It has further to be noted that the factum of the
rejection of his earlier bail application bearing
Misc. 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
review of the earlier judgment which is not
permissible under criminal law as has been held
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by this Court in Hari Singh Mann v. Harbhajan
Singh Bajwa ((2001) 1 SCC 169) and various
other judgments."
9. In State of Tamilnadu vs. S.A.Raja (2005) 8 SCC
380 Hon'ble Supreme Court has held that:
"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 the bail applications
without there being any change of
circumstances would lead to bad precedents."
10. In the case of Kalyan Chandra Sarkar,vs Rajesh
Ranjan (2004) 7SCC 528Hon'ble Supreme Court held as
follows:
"20. "Before concluding, we must note 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 what are the fresh grounds which
persuade it to take a view different from the one
taken in the earlier applications.........."
11. In Virupakshappa Gouda & another vs. State of
Karnataka and another (2017) 5 Supreme Court Cases 406
Hon'ble Supreme Court held that:
"12. On a perusal of the order passed by the learned
trial Judge, we find that he has been swayed by
the factum that when a charge-sheet is filed it
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amounts to change of circumstance. Needless
to Say, filing of the charge-sheet does not in any
manner lessen the allegations made by the
prosecution. On the contrary, filing of the
charge-sheet establishes that after due
investigation the investigating agency, having
found materials, has placed the charge- sheet
for trial of the accused persons. As is further
demonstrable, the learned trial Judge has
remained absolutely oblivious of the fact that
the appellants had moved the special leave
petition before this Court for grant of bail and
the same was not entertained. Be it noted, the
second bail application was filed before the
Principal Sessions Judge after filing of the
charge-sheet which was challenged in the High
Court and that had travelled to this Court. These
facts, unfortunately, have not been taken note of
by the learned trial Judge.........."
12. A perusal of the aforementioned judgements
indicates that successive bail applications are permissible
under the changed circumstances but the change of
circumstances must be substantial one which has a direct
impact on the earlier decision and not merely cosmetic
changes which are of little or no consequence. Without the
change in the circumstances, the subsequent bail application
would be deemed to be seeking review of the earlier rejection
order which is not permissible under criminal law. While
entertaining such subsequent bail applications, the Court has
a duty to consider the reasons and grounds on which the
earlier bail application was rejected and what are the fresh
grounds which persuade it warranting the evaluation and
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consideration of the bail application afresh and to take a view
different from the one taken in the earlier application. There
must be change in the fact situation or in law which requires
the earlier view being interfered with or where the earlier
finding has become obsolete.
13. This Court, confronted Mr. Udayanand Sharma,
learned counsel for the petitioner, to point out the change in
circumstances after the dismissal of the earlier bail
applications. However, he has failed to point out any
substantial change in the circumstances after the dismissal of
his earlier bail applications, which would entitle the petitioner
for release on bail.
14. In view of the facts and circumstances of the
present case, this Court is of the view that after the dismissal
of the earlier bail applications, there is no substantial change
in the circumstances which would entitle the petitioner to file
the present application. Therefore, in absence of any changed
circumstances, the present successive application for bail
cannot be entertained. Moreover, the petitioner is a habitual
offender and four more cases under the NDPS Act have
already been registered against him at different police
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stations. Furthermore, there is every likelihood of the
petitioner's absconding from justice, if released on bail, as one
of the co-accused Vishal Kumar, who was granted interim bail
by this court on the ground of his sister's marriage w.e.f.
14.06.2023 to 23.06.2023, did not surrender himself before
the Jail Authorities and had absconded since then.Hence, for
the reasons mentioned above, the bail application filed by the
petitioner is dismissed.
15. 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.
( Sushil Kukreja )
Judge
29th October, 2024
(raman)
