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2024 DIGILAW 139 (HP)

Vipin Singh v. State of H. P.

2024-02-28

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition seeking bail in FIR No.15 of 2023 dated 03.03.2023 registered at Police Station Sainj, District Kullu, H.P. for the commission of offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). 2. It has been asserted that the petitioner was arrested on 8.03.2023 for the commission of an offence punishable under Section 29 of the NDPS Act vide FIR No.15 of 2023. The allegations against the petitioner are false. The Police recovered 2.603 grams of charas from the co-accused and the petitioner has nothing to do with the commission of the offence. The version of the Police is highly improbable. The petitioner was not instrumental in the arrangement of the contraband in question nor had he any communication pertaining to the sale, purchase and transportation of the contraband. The petitioner is a respectable person in the society and the investigation is silent regarding the role attributed to the petitioner. The SIM was not issued in the name of the petitioner and it was found to be registered in the name of some other person. The WhatsApp call detail record shows that the main accused —Sanju was in touch with Vicky Bhai from Jaipur and the bail petitioner is not connected to the present case. The petitioner is a shopkeeper and had some bank transactions in February because Sanjay had purchased some hardware items from the petitioner’s shop. There is no link evidence and there are no reasonable grounds for believing that the petitioner had committed any offence. The petition has been filed on fresh grounds as the supportive evidence was not filed during the previous petition; hence, it was prayed that the present petition be allowed. 3. The State has filed reply asserting that the police party was on patrolling duty on 02.03.2023. They intercepted a vehicle bearing registration no. HP01K-7535. They searched the vehicle and recovered 2 kg 603 grams of Charas during the search. The driver of the vehicle revealed his name as Sanju. The police arrested the driver. Sanju made a disclosure statement that the Charas were given to him by one Vipin Singh (present petitioner). He could identify the place where the Charas was handed over. HP01K-7535. They searched the vehicle and recovered 2 kg 603 grams of Charas during the search. The driver of the vehicle revealed his name as Sanju. The police arrested the driver. Sanju made a disclosure statement that the Charas were given to him by one Vipin Singh (present petitioner). He could identify the place where the Charas was handed over. The police checked the mobile phone of Sanju and found that the petitioner had talked to Sanju six times. He had also paid the money to the petitioner. Sanju identified the place where Charas was handed over to him. As per the report of the analysis, the substance was found to be Charas having 30.14% w/w resin in it. Sonu Devi made a statement that she had handed over one SIM to Sanju. Kirna Devi made a statement she had handed over a SIM to the petitioner. There is sufficient material to connect the petitioner with the commission of a crime. Therefore, it was prayed that the present petition be dismissed. 4. I have heard Mr. Yashveer Singh Rathore, learned counsel for the petitioner and Mr. Pushpender Jaswal, learned Additional Advocate General, for the respondent/State. 5. Mr. Yashveer Singh Rathore, learned counsel for the petitioner submitted that the SIM was not issued in the name of the petitioner and the money was paid by the main accused to the petitioner for the items purchased by him from the shop of the petitioner, which is duly supported by the bill issued by the petitioner. These documents could not be produced during the earlier bail petition; therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr. Pushpender Jaswal, learned Additional Advocate General, for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. A commercial quantity of charas was recovered from the co-accused and the rigours of Section 37 of the NDPS Act apply to the present case; therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 8. 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. 7. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 8. 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 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. (c) While it is not accepted to have the entire evidence 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 have 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. 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 with 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: (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. Ramblas [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124].)” 9. 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. 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; (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.’ 10. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. It is undisputed that the petitioner had earlier filed a bail petition No. Cr.MPM 2872 of 2023, which was dismissed on 06.12.2023. 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 absence of any substantial change in the fact-situation. 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. 12. Similarly, it was held in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an earlier bail application was rejected, the court has to consider the rejection of an earlier bail application and then consider as to 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 application for bail should be granted.” 13. It was submitted that the call detail record and the bill issued in the name of Sanju could not be produced during the hearing of the earlier bail application. It was held in Suresh K.M. vs. State of Kerala (02.08.2023 - KERHC): MANU/KE/1898/2023 while dealing with a case of pre-arrest bail that failure to mention the relevant evidence does not entitle a person to file a subsequent bail application without the change in circumstances. It was observed: “8. The order granting or refusing to grant a pre-arrest bail application is a final order, and the entertainment of a second application essentially leads to a review of the earlier order. However, a second or subsequent application for pre-arrest bail is not completely barred. It cannot be entertained in routine as well. An accused must establish the change in the circumstances sufficient to persuade the court to invoke its extraordinary jurisdiction to maintain the application for pre-arrest bail for the second time. However, a second or subsequent application for pre-arrest bail is not completely barred. It cannot be entertained in routine as well. An accused must establish the change in the circumstances sufficient to persuade the court to invoke its extraordinary jurisdiction to maintain the application for pre-arrest bail for the second time. A material change in fact situation or law is sine qua non for a second application for pre-arrest bail. The three Judge Bench of the Apex Court in Kalyan Chandra Sarkar v. Pappu Yadav MANU/SC/0045/2005 : [(2005 (2) KLT SN 4 (C. No. 3) SC: AIR 2005 SC 921 ] considered the legality and propriety of successive bail applications. It was held in paragraph 20 thus: "Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application." Following the principles of law laid down by the Apex Court in Kalyan Chandra Sarkar (supra), this Court, in Vineeth v. State of Kerala (MANU/KE/1797/2015: 2015 (5) KHC 224 ), held that successive bail applications without showing any change in the fact situation or circumstance requiring the invocation of the extraordinary jurisdiction of the High Court or the Court of Session under S.438 of Cr.P.C. can only be regarded as an abuse of the process of the court. The Full Bench of the Calcutta High Court in Sudip Sen v. State of W.B. (MANU/WB/0509/2010: 2010 Cri. L.J. 4628), after reiterating the principle that there is no general bar or impediment in moving a second application for pre-arrest bail, held that a person will be entitled to move the High Court or the Court of Session for the second time only on the ground of substantial change in the facts and circumstances of the case due to subsequent events. It was clarified that the accused would not be entitled to move the second application on the ground that the Court, on earlier occasions, failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court. It was clarified that the accused would not be entitled to move the second application on the ground that the Court, on earlier occasions, failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court. The Full Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan [MANU/RH/0044/2005: 2006 (1) KLT SN 15 (C. No. 25) Raj. (F.B.)] took the view that a second or subsequent application under Section 438 of Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. A Single Bench of this Court in Muhammed Ziyad v. State of Kerala & Another (MANU/KE/1841/2015: 2015 (4) KLJ 22 ) deprecated filing successive bail applications without legal justification. Another Single Bench of this Court in Pandit v. State of Kerala (MANU/KE/2611/2018: 2018 (4) KLT 249 ) held that subsequent application for pre-arrest bail on the same grounds without any change in circumstances is liable to be rejected even summarily. 9. Thus, even though there is no absolute embargo in filing the subsequent application for pre-arrest bail, it can be entertained only if there is a substantial change in the facts and circumstances of the case, which requires the earlier view to be interfered with or where the earlier finding has become obsolete. Ordinarily, the grounds canvassed in the earlier application cannot be permitted to be reurged in the subsequent application. Nor could the accused in the subsequent application contend that the Court, while considering the earlier bail application, failed to advert any fact or material on record. A fact which was not in existence at the time of considering the earlier bail application but came into existence subsequently alone could be considered a change in facts and circumstances.” 14. Similar considerations will apply to the regular bail application. 15. In the present case, no change in circumstances has been pleaded and the circumstances asserted in the application executed at the time of decision of earlier bail application; therefore, the bail application cannot be allowed on this short ground alone. 16. It was submitted that the SIM was not issued in the name of the petitioner. 15. In the present case, no change in circumstances has been pleaded and the circumstances asserted in the application executed at the time of decision of earlier bail application; therefore, the bail application cannot be allowed on this short ground alone. 16. It was submitted that the SIM was not issued in the name of the petitioner. This submission will not help the petitioner because the police have recorded the statement of the original holder of the SIM, who stated that she had handed over the SIM to the petitioner. Thus, there is sufficient material to connect the petitioner to the SIM. 17. Reliance was placed upon the WhatsApp call extract, in which, the main accused Sanju is shown to have talked to Vicky Bhai Jaipur, however, the mobile number mentioned in the extract is the same, which has been mentioned in Para 2 of the reply and is stated to be used by the petitioner. The name Vicky Bhai Jaipur is the name given to this mobile number by the holder of the mobile from which, the details were extracted and will not show the identity of the holder of the SIM. Therefore, this evidence does not displace the reasoning of the earlier bail order. 18. Reliance was also placed upon the bill issued by Sangri Traders; however, the authenticity of the bill is yet to be seen. Hence, the same will not assist the petitioner. 19. Therefore, there is no change in circumstances, hence, the present petition cannot be allowed and the same is dismissed. 20. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.