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2025 DIGILAW 429 (HP)

Akshay Kumar v. State of Himachal Pradesh

2025-03-21

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested on 29.9.2023 for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) registered vide FIR No. 131 of 2023, dated 29.9.2023, at Police Station Gagret, District Una, H.P. The prosecution case is false. The petitioner has been in custody since 29.9.2023. The charge sheet has been filed before the Court, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner had filed a bail petition earlier, which was dismissed on the ground that the petitioner has criminal antecedents and is likely to commit the offence in case of his release on bail. The rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner is an addict. He cannot be detained in custody till the conclusion of the trial; hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 28.09.2023 when a secret information was received that a vehicle bearing registration No. HP-06A-6723 was transporting a huge quantity of Heroin. The police completed the codal formalities and associated two independent witnesses Munish Kumar and Aakash Thakur. The police stopped the Alto Car bearing registration no. HP-06A-6723 at about 8:20 p.m. The driver revealed his name as Akshay Kumar and another person sitting with him revealed his name as Sushil Kumar. The police searched the vehicle and recovered 22.04 grams of heroin. The police seized the heroin and arrested the occupants. The accused revealed that Heroin was purchased from Honey. The police arrested Honey. Seven (7) F.I.R.s have been registered against the petitioner. As per the result of the analysis, the total weight of the exhibit was found to be 22.040 grams, and the exhibit was a sample of Diacetyl morphine. The police prepared the challan after completion of the investigation and presented it to the Court. The matter was listed by the learned Trial Court on 10.1.2025 for the fixation of evidence. 3. I have heard Mr. Prashant Sharma, learned counsel for the petitioner and Mr. The police prepared the challan after completion of the investigation and presented it to the Court. The matter was listed by the learned Trial Court on 10.1.2025 for the fixation of evidence. 3. I have heard Mr. Prashant Sharma, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State. 4. Mr. Prashant Sharma, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. There is a delay in the progress of the trial and the petitioner is entitled to bail on this ground; hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the earlier bail petition was dismissed by this Court and there is no change in the circumstances. The delay occurred due to the adjournments sought on behalf of the accused. The accused cannot take advantage of the delay being caused by him in the progress of the trial; hence, he 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. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed as under page 783: - “Relevant parameters for granting bail 26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P . [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P . ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558]. 8. This position was reiterated in Ramratan v. State of M.P. , 2024 SCC OnLine SC 3068 , wherein it was observed as under:- “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:— “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 9. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479. 10. The present petition 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 bearing Cr.MPM No. 827 of 2024 decided on 29.5.2024, titled Akshay Kumar vs State of H.P ., which was dismissed by this Court after holding that the petitioner had criminal antecedents and was not entitled to bail. 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. 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. 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. 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. 13. Similarly, it was held in Kalyan Chandra Sarkar Vs. 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 consider why the subsequent bail application should be allowed. It was held: “11. 13. Similarly, it was held in Kalyan Chandra Sarkar Vs. 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 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.” 14. 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.” 15. 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 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 the fresh grounds, which persuade it to take a view different from the one taken in the earlier applications.” 16. It was held in Ajay Rajaram Hinge v. State of Maharashtra, 2023 SCC OnLine Bom 1551 that successive bail application can be filed if there is a material change in the circumstance, which means the change in the facts or the law. It was observed: “7. It was held in Ajay Rajaram Hinge v. State of Maharashtra, 2023 SCC OnLine Bom 1551 that successive bail application can be filed if there is a material change in the circumstance, which means the 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, change in circumstance has no bearing on the salutatory principle of judicial propriety that successive bail application needs to be decided by the same Judge on 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 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.” 17. 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.” 17. 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. 18. It was submitted that there is a delay in the progress of the trial; hence, the petitioner is entitled to bail. Learned counsel for the petitioner has filed copies of the order sheets of some of the dates of the hearing. These show that an adjournment was sought for consideration of the charge on 21.5.2024, 2.8.2024 and 20.11.2024. The learned Trial Court framed the charges on 13.12.2024 and listed the matter for evidence on 30.4.2025, 5.5.2025 and 6.5.2025 vide order dated 10.1.2025. Therefore, the order sheets of five dates of the hearing show that the adjournments were granted at the instance of the accused on three dates of the hearing. The charge was framed on one day, and the matter was listed for evidence on another day. Therefore, the plea taken by the petitioner that there is a delay in the progress of the trial not attributable to him is not acceptable. The delay was caused by seeking adjournment on his behalf, and he cannot take advantage of the delay. 19. It was submitted that the petitioner was found in possession of an intermediate quantity, and he is entitled to bail as a matter of right. This submission is not acceptable. It was laid down by this Court in Dilbar Khan v. State of H.P. , 2022 SCC OnLine HP 2441 , that a person found in possession of an intermediate quantity of drugs is not entitled to bail as a matter or right. It was observed: - “9. No doubt the quantity of contraband in the case is intermediate and therefore the rigours of Section 37 of the NDPS Act will not be applicable. Merely because the quantity of contraband recovered is less than the commercial quantity may not by itself be sufficient to grant bail. 10. The menace of drug abuse is not unknown in the society in modern times. Merely because the quantity of contraband recovered is less than the commercial quantity may not by itself be sufficient to grant bail. 10. The menace of drug abuse is not unknown in the society in modern times. The victims are innocent adolescents among others. The drug abuse more often than not leads to drug addiction, which ruins the lives of a substantial number of such persons. The question arises as to how young adolescents, who by and large remain in the custody of their guardians, are able to procure the prohibited drug. Definitely, the drug is made available through a supply chain managed in an organized manner.” 20. It was laid down by this Court in Khushi Ram Gupta v. State of H.P. , 2022 SCC OnLine HP 3779 that the menace of drug addiction has seriously eroded into the fabric of society and the release of an accused on bail in NDPS Act cases will send a negative signal to the society. It was observed: “8. The menace of drug addiction, especially in adolescents and students has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril. 9. It is not a case where the investigating agency is clueless in respect of evidence against the petitioner. Though allegations against the petitioner are yet to be proved in accordance with law, it cannot be singly taken as a factor to grant bail to the petitioner. Nothing has been placed on record on behalf of the petitioner to divulge as to how and in what manner he came in contact with the persons who were residents of State of Himachal Pradesh. Thus there is sufficient prima facie material to infer the implication of the petitioner in the crime. In such circumstances, the release of the petitioner on bail will send a negative signal in society, which definitely shall be detrimental to its interest. 10. The prima facie involvement of the petitioner in the dangerous trade of contraband cannot be ignored merely on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.” 21. 10. The prima facie involvement of the petitioner in the dangerous trade of contraband cannot be ignored merely on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.” 21. Similarly, it was held in Bunty Yadav v. State of H.P. , 2022 SCC OnLine HP 4996 that even where the rigours of Section 37 of the NDPS Act are not applicable, the bail cannot be claimed as a matter of right. Each case has to be adjudged on its own facts. It was observed: “6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Such quantity may not technically fall under the category of commercial quantity, nevertheless, such quantity cannot be termed to be less by any stretch of the imagination. The evident nature of commercial transactions and dealing with the contraband aggravates the situation for the petitioner. In case, where Section 37 of the NDPS Act is not applicable, the bail cannot be claimed as a matter of right. The fate depends on the facts of each and every case. 7. The menace of drug addiction, especially in the adolescents and students has seriously eroded into the fabric of the society, putting the future generation as well as the prospects of future nation building into serious peril.” 22. Karnataka High Court took a similar view in Sri. Thaha Ummer vs Union of India Criminal Petition No.9450/2022 decided on 09-11-2022 and held that merely because Section 37 of the NDPS Act does not apply, a person involved in the commission of an offence punishable under the NDPS Act cannot be released on bail as a matter of right. 23. Therefore, the petitioner cannot claim that he should be released on bail simply because he was found in possession of an intermediate quantity of the narcotic, as per the prosecution. 24. No other point was urged. 25. Consequently, the present petition fails and is dismissed. 26. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.