Himachal Pradesh High Court
Goldy vs State Of Himachal Pradesh on 1 May, 2025
( 2025:HHC:11931 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 131 of 2025
Reserved on: 23.04.2025
Date of Decision: 01.05.2025.
Goldy ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Gurdev Negi, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy
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 for the commission of offences punishable under
Sections 15 and 29 of the Narcotic Drugs and Psychotropic
Substances Act (hereinafter referred to as 'the ND&PS Act'), vide
FIR No. 394 of 2020, dated 22.12.2020, registered at Police
Station Nalagarh, District Solan, H.P. The petitioner has been
falsely implicated. He was employed as a cleaner in the truck
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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before the incident. The driver and the owner of the vehicle
were arrayed as accused. The petitioner has been in custody for
more than four years. The trial is at the initial stage. Out of 23
witnesses 07 witnesses have been examined, and the matter is
now listed for examination of the witnesses at Serial Nos 1, 3, 4
and 5 on 17.5.2025. The petitioner would abide by the terms
and conditions, which the Court may impose. Hence, the
petition.
2. The petition is opposed by filing a status report
asserting that the police party was on patrolling duty on
22.12.2020. The police received a secret informant at 6:30 a.m.
that Balbir Singh, the driver, and Goldy (the present
petitioner), the cleaner of the truck bearing No. HP93-2654
were selling poppy straw from their vehicle. The police reduced
this information to writing and forwarded it to the Superior
Officer. Upon arriving at the scene, the police found one
individual in the parked truck, who identified himself as Goldy
(the present petitioner). He also stated that Balbir Singh had
left and would return shortly. The police searched for Balbir
Singh but were unable to locate him. The officers inspected the
truck in the presence of Dy.S.P. Arun Modi and recovered nine
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bags containing 189.137 kg of poppy straw. The police seized
the poppy straw and the truck before arresting the petitioner.
The poppy straw was sent to SFSL Junga, and the results of the
analysis confirmed it was indeed a sample of poppy straw.
Balbir Singh committed suicide on 04.01.2021. The challan was
prepared and presented before the Court on 12.03.2021. Seven
(7) witnesses have been examined so far, and the matter was
listed on 17.5.2025 for recording the statements of prosecution
witnesses. Hence, the status report.
3. I have heard Mr. Gurdev Negi, learned counsel for
the petitioner and Mr. Ajit Sharma, learned Deputy Advocate
General, for the respondent-State.
4. Mr. Gurdev Negi, learned counsel for the petitioner,
submitted that the petitioner is innocent and he was falsely
implicated. The prosecution has not examined any witnesses
since the dismissal of the earlier petition. There is no progress
in the trial, and the right to a speedy trial of the petitioner is
being violated. Hence, he prayed that the present petition be
allowed and the petitioner be released on bail.
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5. Mr. Ajit Sharma, learned Deputy Advocate General
for the respondent-State, submitted that the summons are
being issued and the prosecution has examined seven
witnesses. There is no delay in the progress of the trial. Hence,
it was 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.
7. It is undisputed that the petitioner had filed a bail
petition, which was registered as Cr.MP(M) No. 1355 of 2024
and was dismissed by the Court on 14.8.2024. 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, a 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
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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: -
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 v.
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
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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 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
the grant of bail, the court entertaining such
subsequent bail applications has a duty to consider the
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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 a successive bail
application can be filed if there is a material change in the
circumstances, which means a 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
situation or law which requires the earlier view to be
interfered with or where the earlier finding has become
obsolete. However, a change in circumstance has no
bearing on the salutary principle of judicial propriety
that successive bail application needs to be decided by
the same Judge on the 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
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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 Court noticed in the order dated 14.8.2024 that
seven witnesses were examined and the matter was listed on
30.7.2024. Status report dated 21.4.2025 also reads that seven
witnesses have been examined and the matter is now listed on
17.5.2025. This shows that the trial has not progressed within
eight months.
15. Mr. Ajit Sharma, learned Deputy Advocate General,
submitted that the summons is being issued to the witnesses,
and the witnesses are not appearing. The prosecution cannot
be faulted for the non-appearance of the witnesses. This
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submission is not acceptable. It was held by the Hon'ble
Supreme Court in Shailendra Kumar vs. State of Bihar and others
(2002) 1 SCC 655 that the Investigating Officer must remain
present during the trial and keep the witnesses present. If
there is a violation on the part of the witnesses to remain
present, the Court has to take proper action, including the
issuance of bailable/non-bailable warrants as the case may be.
It was observed: -
"9. In our view, in a murder trial, it is a sordid and
repulsive matter that, without informing the police
station officer-in-charge, the matters are proceeded by
the court and by the APP and tried to be disposed of as if
the prosecution had not led any evidence. From the facts
stated above, it appears that the accused wants to
frustrate the prosecution by unjustified means, and it
appears that by one way or the other, the addl. The
Sessions judge, as well as the APP, have not taken any
interest in the discharge of their duties. It was the duty of
the session judge to issue a summons to the investigating
officer if he failed to remain present at the time of the trial
of the case. The presence of an investigating officer at the
time of trial is a must. It is his duty to keep the witnesses
present. If there is a failure on the part of any witness to
remain present, it is the duty of the court to take
appropriate action, including the issuance of
bailable/non-bailable warrants as the case may be. It
should be well understood that prosecution cannot be
frustrated by such methods and victims of the crime
cannot be left in the lurch." (Emphasis supplied)
( 2025:HHC:11931 )
16. Therefore, primarily, it is for the Investigating
Officer to remain present and produce the witnesses during the
Trial, and this duty cannot be fulfilled by saying that the
summons is being issued.
17. The petitioner has been in custody since 21.12.2020.
More than four years have elapsed since the petitioner has
been in custody. The prosecution has not completed the
evidence within the period of four years, and there is no
likelihood of the early conclusion of the trial, keeping in view
the fact that the matter is only listed on one day and not
consecutively.
18. It was laid down in Mohd. Muslim v. State (NCT of
Delhi), 2023 SCC OnLine SC 352 that the right to a speedy trial is
a constitutional right of an accused. The right of bail is
curtailed on the premise that the trial would be concluded
expeditiously. It was observed: -
"13. When provisions of law curtail the right of an
accused to secure bail, and correspondingly fetter
judicial discretion (like Section 37 of the NDPS Act, in
the present case), this court has upheld them for
conflating two competing values, i.e., the right of the
accused to enjoy freedom, based on the presumption of
innocence, and societal interest - as observed in Vaman
Narain Ghiya v. State of Rajasthan, [2008] 17 SCR 369:
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(2009) 2 SCC 281 ('the concept of bail emerges from the
conflict between the police power to restrict liberty of a
man who is alleged to have committed a crime, and
presumption of innocence in favour of the alleged
criminal....'). They are, at the same time, upheld on the
condition that the trial is concluded expeditiously. The
Constitution Bench in Kartar Singh v. State of Punjab,
[1994] 2 SCR 375: (1994) 3 SCC 569 made observations to
this effect. In Shaheen Welfare Association v. Union of
India, [1996] 2 SCR 1123: (1996) 2 SCC 616 again, this
court expressed the same sentiment, namely that when
stringent provisions are enacted, curtailing the
provisions of bail, and restricting judicial discretion, it
is on the basis that investigation and trials would be
concluded swiftly. The court said that Parliamentary
intervention is based on:
A conscious decision has been taken by the
legislature to sacrifice to some extent, the
personal liberty of an under-trial accused for the
sake of protecting the community and the nation
against terrorist and disruptive activities or other
activities harmful to society, it is all the more
necessary that investigation of such crimes is
done efficiently and an adequate number of
Designated Courts are set up to bring to book
persons accused of such serious crimes. This is
the only way in which society can be protected
against harmful activities. This would also ensure
that persons ultimately found innocent are not
unnecessarily kept in jail for long periods."
19. The Court highlighted the effects of pre-trial
detention and the importance of a speedy trial as under:
"22. Before parting, it would be important to reflect that
laws which impose stringent conditions for the grant of
bail may be necessary in the public interest; yet, if trials
are not concluded in time, the injustice wreaked on the
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individual is immeasurable. Jails are overcrowded, and
their living conditions, more often than not, are
appalling. According to the Union Home Ministry's
response to Parliament, the National Crime Records
Bureau had recorded that as of 31st December 2021, over
5,54,034 prisoners were lodged in jails against a total
capacity of 4,25,069 lakhs in the country[National Crime
Records Bureau, Prison Statistics in India https://ncrb. gov.
in/sites/default/files/P SI-202 1/Executive ncrb Summary-
2021.pdf]. Of these 122,852 were convicts; the rest,
4,27,165 were undertrials.
23. The danger of unjust imprisonment is that inmates
are at risk of 'prisonisation', a term described by the
Kerala High Court in A Convict Prisoner v. State, 1993 Cri
LJ 3242, as a radical transformation whereby the
prisoner:
'loses his identity. He is known by a number. He
loses personal possessions. He has no personal
relationships. Psychological problems result from
loss of freedom, status, possessions, dignity, and
autonomy of personal life. The inmate culture of
prison turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-
perception changes. '
24. There is a further danger of the prisoner turning to
crime, 'as crime not only turns admirable but the more
professional the crime, more honour is paid to the
criminal'[Working Papers - Group on Prisons & Borstals -
1966 U.K.] (also see Donald Clemmer's 'The Prison
Community' published in 1940[Donald Clemmer, The
Prison Community (1968) Holt, Rinehart & Winston, which
is referred to in Tomasz Sobecki, 'Donald Clemmer's
Concept of Prisonisation', available at:
https://www.tkp.edu.pl/
wpcontent/uploads/2020/12/Sobecki_sklad.pdf (accessed
on 23rd March 2023).]). Incarceration has further
deleterious effects, where the accused belongs to the
weakest economic strata: immediate loss of livelihood,
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and in several cases, scattering of families as well as
loss of family bonds and alienation from society. The
courts, therefore, have to be sensitive to these aspects
(because in the event of an acquittal, the loss to the
accused is irreparable), and ensure that trials -
especially in cases where special laws enact stringent
provisions, are taken up and concluded speedily."
20. It was held in Shaheen Welfare Association. v. Union
of India, (1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person
cannot be kept behind the bars when there is no prospect of
trial being concluded expeditiously. It was observed at page
621:
"8. It is in this context that it has become necessary to
grant some relief to those persons who have been
deprived of their personal liberty for a considerable
length of time without any prospect of the trial being
concluded in the near future. Undoubtedly, the safety of
the community and the nation needs to be safeguarded
looking to the nature of the offences these undertrials
have been charged with. But the ultimate justification
for such deprivation of liberty pending trial can only be
their being found guilty of the offences for which they
have been charged. If such a finding is not likely to be
arrived at within a reasonable time, some relief
becomes necessary."
21. Similarly, it was laid down by the Hon'ble Supreme
Court in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321: (2022)
3 SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be
subjected to unending detention pending trial. It was
observed at page 335:
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"40. Having held so, we cannot be oblivious to what has
been urged on behalf of the respondent-accused that
cancellation of bail by this Court is likely to be
construed as an indefinite foreclosure of his right to
seek bail. It is not necessary to dwell upon the wealth of
case law which, regardless of the stringent provisions in
a penal law or the gravity of the offence, has time and
again recognised the legitimacy of seeking liberty from
incarceration. To put it differently, no accused can be
subjected to unending detention pending trial,
especially when the law presumes him to be innocent
until proven guilty. Even where statutory provisions
expressly bar the grant of bail, such as in cases under
the Unlawful Activities (Prevention) Act, 1967, this
Court has expressly ruled that after a reasonably long
period of incarceration, or for any other valid reason,
such stringent provisions will melt down, and cannot be
measured over and above the right of liberty guaranteed
under Article 21 of the Constitution (see Union of
India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3
SCC 713, paras 15 and 17] )."
22. It was laid down by the Hon'ble Supreme Court
recently in Javed Gulam Nabi Shaikh v. State of Maharashtra
(2024) 9 SCC 813: 2024 SCC OnLine SC 1693 that the right to
speedy trial of the offenders facing criminal charges is an
important facet of Article 21 of the Constitution of India and
inordinate delay in the conclusion of the trial entitles the
accused to grant of bail, it was observed at page 817: -
"10. Long back, in Hussainara Khatoon (1) v. State of
Bihar [Hussainara Khatoon (1) v. State of Bihar, (1980) 1
SCC 81: 1980 SCC (Cri) 23], this Court had declared that
the right to speedy trial of offenders facing criminal
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charges is "implicit in the broad sweep and content of
Article 21 as interpreted by this Court". Remarking that
a valid procedure under Article 21 is one which contains
a procedure that is "reasonable, fair and just", it was
held that : (SCC p. 89, para 5)
"5. ... Now obviously procedure prescribed by law
for depriving a person of liberty cannot be
"reasonable, fair or just" unless that procedure
ensures a speedy trial for determination of the guilt
of such person. No procedure which does not ensure
a reasonably quick trial can be regarded as
"reasonable, fair or just" and it would fall foul of
Article 21. There can, therefore, be no doubt that a
speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of
the fundamental right to life and liberty enshrined in
Article 21. The question which would, however, arise
is as to what would be the consequence if a person
accused of an offence is denied a speedy trial and is
sought to be deprived of his liberty by imprisonment
as a result of a long-delayed trial in violation of his
fundamental right under Article 21."
11. The aforesaid observations have resonated, time
and again, in several judgments, such as Kadra
Pahadiya v. State of Bihar [Kadra Pahadiya v. State of
Bihar, (1981) 3 SCC 671: 1981 SCC (Cri) 791] and Abdul
Rehman Antulay v. R.S. Nayak [Abdul Rehman
Antulay v. R.S. Nayak, (1992) 1 SCC 225: 1992 SCC (Cri) 93].
In the latter, the court re-emphasised the right to a
speedy trial and further held that an accused, facing a
prolonged trial, has no option: (Abdul Rehman Antulay
case [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC
225: 1992 SCC (Cri) 93], SCC p. 269, para 84)
"84. ... The State or complainant prosecutes him.
It is, thus, the obligation of the State or the
complainant, as the case may be, to proceed with the
case with reasonable promptitude. Particularly, in
this country, where the large majority of accused
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come from poorer and weaker sections of the society,
not versed in the ways of law, where they do not
often get competent legal advice, the application of
the said rule is wholly inadvisable. Of course, in a
given case, if an accused demands a speedy trial and
yet he is not given one, it may be a relevant factor in
his favour. But we cannot disentitle an accused from
complaining of infringement of his right to a speedy
trial on the ground that he did not ask for or insist
upon a speedy trial."
23. It was further held that if the State or any
prosecuting agency, including the Court concerned, has no
wherewithal to provide the right of speedy trial to the accused,
then the bail should not be opposed on the ground that the
crime is serious. It was observed at page 820:
17. If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or
protect the fundamental right of an accused to have a
speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting
agency should not oppose the plea for bail on the
ground that the crime committed is serious. Article 21 of
the Constitution applies irrespective of the nature of the
crime.
18. We may hasten to add that the petitioner is still an
accused, not a convict. The over-arching postulate of
criminal jurisprudence that an accused is presumed to
be innocent until proven guilty cannot be brushed aside
lightly, howsoever stringent the penal law may be.
19. We are convinced that the manner in which the
prosecuting agency as well as the Court have proceeded,
the right of the accused to have a speedy trial could be
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said to have been infringed, thereby violating Article 21
of the Constitution.
24. In the present case, the prosecution has only
examined seven witnesses within four years. The prosecution
cannot be permitted to prolong the trial and keep the accused
in custody. The constitutional right of freedom has to be
weighed against the protection of society, and a balance has to
be struck by the Court. If the Investigating Agency fails to
discharge its duty of concluding the trial expeditiously, the
accused has a right to be released on bail.
25. In view of the above, the present petition is
allowed, and the petitioner is ordered to be released on bail in
the sum of ₹50,000/- with one surety of the like amount to the
satisfaction of the learned Trial Court. While on bail, the
petitioner will abide by the following terms and conditions: -
(I) The petitioner will not intimidate the witnesses,
nor will he influence any evidence in any manner
whatsoever;
(II) The petitioner shall attend the trial in case a
charge sheet is presented against him and will not
seek unnecessary adjournments;
(III) The petitioner will not leave the present address
for a continuous period of seven days without
furnishing the address of the intended visit to the
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SHO, the Police Station concerned and the Trial
Court;
(IV) The petitioner will surrender his passport, if any,
to the Court; and
(V) The petitioner will furnish his mobile number and
social media contact to the Police and the Court
and will abide by the summons/notices received
from the Police/Court through SMS/ WhatsApp/
Social Media Account. In case of any change in the
mobile number or social media accounts, the
same will be intimated to the Police/Court within
five days from the date of the change.
26. It is expressly made clear that in case of violation of
any of these conditions, the prosecution will have the right to
file a petition for cancellation of the bail.
27. The petition stands accordingly disposed of. A copy
of this order be sent to the Superintendent of Model Central
Jail, Kanda, District Shimla, H.P. and the learned Trial Court by
FASTER.
28. 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
01st May, 2025
(Chander)
KARAN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH,
OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA,
Phone=e5d61f6599be410af7c5f0b57379e225878f23c9ea
27b281046985b3b1fe0b75, PostalCode=171001,
SINGH S=Himachal Pradesh,
SERIALNUMBER=f72cf9165791d55ec939375291962d0d
90d094876bd59591426c0b1ce651f01f, CN=KARAN
SINGH GULERIA
GULERIA Reason: I am the author of this document
Location:
Date: 2025-05-01 17:35:03
