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2024 DIGILAW 1556 (AP)

Ushal Yadul v. Union Of India

2024-11-19

T.MALLIKARJUNA RAO

body2024
The Court made the following ORDER: T MALLIKARJUNA RAO, J. 1. This is the 2nd Criminal Petition, under Sections 480 and 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘ BNSS ’) [previously filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973], has been filed by the Petitioner/A2, seeking regular bail against Crl.M.P.No.14 of 20224 in NSC.No.6 of 2024 [in C.No.VIII/10/20/2023-Prev, on the file of Customs Commissionerate (Preventive), Vijayawada] on the file of II Additional District Judge-cum-Metropolitan Sessions Judge Court, Vijayawada (for short, ‘Special Court’), registered for the offences punishable under sections 20, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’). 2. The Prosecution outlines that on receipt of credible information received by the Additional Commissioner of Customs, Customs Commissionerate (Preventive) Vijayawada, the Inspector of Customs, on the even date of 24.06.2023 secured two witnesses and laid a route watch opposite to Reliance Trends store, Prasadampadu, Vijayawada and intercepted a white colour Maruti Suzuki Swift Dzire car bearing No.MH 03 BC 1345 and found four persons therein. Petitioner/A.2 was found in the said car beside the driving seat. Later on search of the car, the Inspector of Customs found 46 packets of Ganja weighing about 94.209 kgs, and subsequently, found one TATA Intra V30 van bearing No.TS08 UH 6790 and found two persons therein and on search of the said van, 29 bags of Ganja weighing 311.020 kgs were recovered. After the seizure of the contraband and the aforesaid two vehicles on 25.06.2023, the Customs officials recorded the statement of the accused under section 67 of the NDPS Act and arrested him on 26.06.2023. Based on the application of the Superintendent of Customs, the IV Additional Chief Metropolitan Magistrate, Vijayawada, has issued a Section 52A inventory certificate on the even date of 22.07.2023. 3. Learned counsel for the Petitioner asserts that after investigation, a charge sheet was filed, leading to the registration of N.S.C.No.6 of 2024 before the Special Court, where the trial is pending. The Petitioner’s earlier bail application, Crl.P.No.1445 of 2024 was dismissed by this Court on 23.04.2024. Petitioner is arrested on 27.06.2023, since then he is languishing in jail. Respondent Department has not followed the mandatory procedure enumerated under section 52A(2) of NDPS Act. The Petitioner’s earlier bail application, Crl.P.No.1445 of 2024 was dismissed by this Court on 23.04.2024. Petitioner is arrested on 27.06.2023, since then he is languishing in jail. Respondent Department has not followed the mandatory procedure enumerated under section 52A(2) of NDPS Act. The Petitioner is ready to provide the sureties as deemed appropriate by the Court and will abide by its conditions. Therefore, the learned counsel requests that the bail be granted to the Petitioner. 4. The Learned standing counsel for the Respondent opposed the grant of anticipatory bail to the Petitioner, citing the large quantity of Ganja i.e., 405.229 kgs, involved in this case. 5. I have heard both sides. Learned counsel on both sides reiterated their submissions on par with the contentions presented in the Petition and the report. 6. The charge sheet filed by the Investigating Officer states that on 25.06.2023, 405.229 kgs of ganja was seized from the possession of A.1 to A.6 while they were proceeding in a two different vehicles i.e., one Tata Intra V30 bearing registration No.TS08 UH 6790 and Maruti Suzuki Swift Dzire bearing registration No.MH03 BC 1345 under the cover of panchanama dated 25.06.2023. 7. Where prima facie involvement of the Accused is apparent, the contentions raised regarding the contradictions in the charge sheet are required to be tested at the time of trial, but not at this stage. The period of incarceration by itself would not entitle the Petitioner/A.2 to be enlarged on bail. Filing of the charge sheet establishes that after due investigation, the investigation agency, having found materials, has placed the charge sheet for the trial of the Petitioner. 8. All the contentions raised by the Petitioner have previously undergone comprehensive scrutiny during the preceding bail application, culminating in its dismissal by this Court. Hence, the same contentions raised on behalf of the Petitioner and the findings of this Court do not need to be reiterated. 9. As already noted, this is the second regular bail application filed on behalf of the Petitioner. It is well settled in law that successive bail application cannot be entertained unless there has been a substantial change in the circumstances of the case. 10. 9. As already noted, this is the second regular bail application filed on behalf of the Petitioner. It is well settled in law that successive bail application cannot be entertained unless there has been a substantial change in the circumstances of the case. 10. In this context, it is pertinent to refer the decision in Rahul Malik vs. State of Himachal Pradesh , MANU/HP/1377/2020 wherein the High Court of Himachal Pradesh held that: Needless to say that after dismissal of a bail petition, the bail petitioner, in a succeeding petition, has to successfully show before the Court, the change in the circumstances. It is well settled that the accused has a right to maintain successive bail petitions under changed circumstances and the change in the circumstances must be substantial having direct and consequential impact on the previous decision, whereby the bail was denied. The change(s) in the circumstances must not be trivial or cosmetic having no significance or of little or no consequence. It is also well settled that without substantial change in the circumstances, the subsequent bail petition would be merely review sought to the earlier petition, which was rejected, and such review is not permissible under the law. It is the duty of the Court to consider all the reasons and grounds whereupon the earlier bail petition was rejected and what are the fresh grounds worth consideration and ultimately warranting evaluation of fresh bail petition and leading the Court to take a divergent view from that of the earlier view rejecting the petition. There must be change in fact situation or in law, compelling the Court to take different view. Thus, the Court has a narrow area to reconsider the successive bail petition and this narrow area is only change in circumstances. 11. In Jogia @ Jogendra Jena Vs. State of Odisha , MANU/OR/0450/2017 the High Court of Orissa held that: "Successive bail applications are maintainable but there has to be material change in the fact situation and not mere cosmetic change. Successive bail application on the same grounds which were available to the accused at the time of consideration of the earlier bail application would not be maintainable. Neither a ground that the earlier bail application was not properly placed by the previously engaged counsel can be entertained." 12. Successive bail application on the same grounds which were available to the accused at the time of consideration of the earlier bail application would not be maintainable. Neither a ground that the earlier bail application was not properly placed by the previously engaged counsel can be entertained." 12. It is clear that unless there is a significant alteration in the factual circumstances or legal principles necessitating a reconsideration of the previous stance, or if the earlier determination has become obsolete, the second regular bail application cannot be considered. The material on record indicates that there have been no changes in the circumstances since the previous bail application. 13. The learned counsel for the Petitioner submits that, despite the direction passed by this Court in Crl.P.No.4483 of 2024 for the Special Judge to dispose of the case expeditiously, no significant progress has been made, and the charges have yet to be framed. The learned standing counsel for the Respondent submits that a charge sheet has been filed against Accused Nos.1 to 6, with some of the accused having been granted bail. The delay in framing charges can be attributed to several factors, including the non-service of notice to some of the accused who were released on bail, with some having engaged counsel, while others have yet to engage the counsel. Consequently, the Special Court has been unable to frame charges within the expected time frame. However, the prosecution has undertaken to cooperate fully with the Special Court to ensure the expeditious disposal of the matter, in compliance with the directions issued by this Court in Crl.P.No.4483 of 2024, while dismissing the bail application of Accused Nos.2 to 4. In light of the material on record, it is difficult to sustain the Petitioner’s contention that the delay resulted from any lack of cooperation by the prosecution with the Special Court. 14. Given above, and taking into account the cumulative effect of entire facts and circumstances, without commenting upon the merits of the evidence, and the substantial quantity of contraband involved, the manner of its commission, and its impact on the society, and in the absence of change of circumstances, this Court is not inclined to consider the Petitioner’s second regular bail application. Hence, the petition deserves to be dismissed. 15. In light of this, the Criminal Petition is dismissed. Miscellaneous applications pending, if any, shall stand closed.