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2023 DIGILAW 106 (HP)

Bhola Singh v. State of Himachal Pradesh

2023-03-03

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. The petitioner has approached this Court for grant of bail under Section 439 Cr.P.C. in case FIR No. 36 of 2021, dated 16.02.2021, under Sections 15, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, (for short ‘ND&PS Act’), registered at Police Station, Aut, District Mandi, H.P. 2. The petitioner has prayed for grant of bail on the ground that he has been falsely implicated. He is in custody since 16.02.2021 and the trial has not yet concluded. It is submitted that in case of grant of bail to the petitioner, he shall make himself available for the remaining trial without causing any delay in its conclusion. 3. Per contra, the respondent has opposed the bail application and has submitted that the petitioner is involved in offence under Section 15 of the ND&PS Act involving commercial quantity of contraband. It is further submitted that the petitioner had earlier also approached this Court for grant of bail by way of Cr.MP(M) No. 882 of 2022 and had remained unsuccessful as his bail petition was rejected by this Court on 13.5.2022. As per the respondent, there is no changed circumstance and hence the petitioner is not entitled to any relief. 4. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 5. The status report filed on record reveals that on 16.02.2021, the Police officials of Police Station Aut, District Mandi, H.P. were on patrol duty. At about 3:00 AM, their vehicle was stopped by two labourers at the distance of about 300 meters from Aut towards Kullu. They were working at four lane construction site and had disclosed that they had noticed three persons alighting from a car and running towards river side. A car was found parked nearby. The registration number of the car was noticed with the help of search light and it was also found that a gunny bag was lying on the rear seat of the car. Search was conducted for the persons, who had left the car. At about 7:15 AM two persons, including the petitioner were apprehended at the bank of river. They disclosed that the car belonged to Kulwant Singh. On search of the car, total five gunny bags were recovered containing 65.720 kg poppy husk. The petitioner alongwith his companion, named Jaswinder Singh, were arrested. At about 7:15 AM two persons, including the petitioner were apprehended at the bank of river. They disclosed that the car belonged to Kulwant Singh. On search of the car, total five gunny bags were recovered containing 65.720 kg poppy husk. The petitioner alongwith his companion, named Jaswinder Singh, were arrested. The third accused named Kulwant Singh is stated to be absconding. It is also mentioned in the status report that petitioner is already an accused in the following cases:- i) FIR No. 75 of 2014 dated 28.05.2014 under Section 15 of NDPS Act, PS, Ludhiana. ii) FIR No. 64 of 2006 dated 08.06.2006 under Section 15 of NDPS Act, PS, Dehlon, Ludhiana. iii) FIR No. 191 of 2013 dated 29.11.2013 under Section 15 of NDPS Act, PS Sadar Ludhiana. iv) FIR No. 30 of 2007 dated 27.03.2007 under Section 15 of NDPS Act, PS Dehlon Ludhiana. v) FIR No. 48 of 2016 dated 05.04.2016 under Sections 341, 323, 451, 506, 34 IPC, PS Ludhiana. vi) FIR No 163 of 2013 dated 14.10.2013 under Section 13-03-67 Gambling Act, PS Sadar Ludhiana. vii) FIR No. 25 of 2020 dated 21.02.2020 under Section 15 of NDPS Act, PS Dehlon, Ludhiana. 6. It is not in dispute that the earlier bail application of the petitioner being Cr.MP(M) No. 882 of 2022 was dismissed by this Court on 13.05.2022 by holding as under:- “7. “In the teeth of Section 37 of N.D.P.S. Act, accused can be released on bail in cases involving commercial quantity of contraband, if all three conditions prescribed in said Section viz. opportunity of opposing the bail to the prosecutor, recording of satisfaction by the Court to the effect that there are reasonable grounds for believing the accused not guilty of such offence and that the accused was not likely to commit the offence during the period of bail. The bare language of Section 37 of the Act reveals that conditions thereof placing fetters on the right of appeal of an accused have to be read conjunctively and absence of any single condition thereof dis-entitle a person from relief of bail. Admittedly, the quantity of contraband involved is commercial. However, in view of the circumstances detailed here-in-above, the petitioner cannot be said to be prima facie connected with the alleged offence. Admittedly, the quantity of contraband involved is commercial. However, in view of the circumstances detailed here-in-above, the petitioner cannot be said to be prima facie connected with the alleged offence. However, the petitioner to succeed in bail has to cross another legal barrier created by Section 37 of the Act by satisfying the Court that he is not likely to commit any offence while on bail. To satisfy the conscience of this Court as to aforesaid requirements of law, it was incumbent on the petitioner to have placed on record such material as to justify his impeccable antecedents. The petitioner has failed to satisfy this requirement and nothing has been produced on record to satisfy the Court as to the antecedents of the petitioner. There is not even a whisper to explain the presence of petitioner at the spot from where he was apprehended. On the other hand, the status report submitted by the respondent makes a mention about the involvement of petitioner in number of cases under NDPS Act, as noticed above. This being so, the likelihood of petitioner committing another offence while on bail, cannot be ruled out. Moreover, charges have already been framed against the petitioner.” 7. There is nothing on record to suggest that any circumstance has changed after passing of aforesaid order. Petitioner faces the same charge. The rigors of Section 37 of the ND&PS Act have application to the facts of the case. No exception can be carved out in the case of petitioner. 8. It is trite law that successive regular bail application under Section 439 of Cr.P.C. can be maintained only if there are changed circumstances and such changed circumstances warrant the grant of bail. Reference can be made to a decision of Hon'ble Supreme Court in State of Himachal Pradesh vs. Kajad (2001) 7 SCC 673 . In absence of the aforesaid conditions, the order granting bail by allowing successive bail application amounts to review of its order by a criminal Court, which is not permissible under criminal law. 9. In Lt. Col. Prasad Shrikant Purohit vs. State of Maharashtra, (2018) 11 SCC 458 , the Hon'ble Apex Court has held as under:- “30. In absence of the aforesaid conditions, the order granting bail by allowing successive bail application amounts to review of its order by a criminal Court, which is not permissible under criminal law. 9. In Lt. Col. Prasad Shrikant Purohit vs. State of Maharashtra, (2018) 11 SCC 458 , the Hon'ble Apex Court has held as under:- “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 duly to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duly to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.” 10. It has also been noticed from the material placed on record that petitioner is involved in many other criminal cases including the offences under the ND&PS Act. He has already suffered conviction in two cases under the ND&PS Act. This fact also dis-entitles the petitioner from the relief as claimed in the instant petition. 11. Accordingly, the petition is dismissed. 12. Any observation made in this order shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.