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2025 DIGILAW 698 (HP)

Mohinder v. State of H. P.

2025-04-08

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 has been arrested for the commission of offences punishable under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act ( in short ‘NDPS Act’ ) and Section 201 of the Indian Penal Code (IPC) in FIR No. 210/2023 dated 05.08.2023 registered at Police Station, Baddi, District Solan, Himachal Pradesh. As per the prosecution, the Police recovered 14,500 tablets containing Tramadol Hydrochloride, 590 tablets containing Tramadol Prolonged release, 11,400 tablets of alprazolam and 600 tablets of alprazolam drugs. A total of 27090 tablets were recovered by the police. The police registered the FIR. The petitioner disclosed the names of Amit Kumar and Anuj Kumar, who were arrested by the police. Police filed a charge sheet against the petitioner, Amit Kumar and Anuj Kumar in September 2023. The petitioner has been in custody since 05.08.2023. The petitioner has been in custody for 17 months, and the charge has not been framed so far. The matter was listed for framing of charge in the month of March, 2025. The right of speedy trial of the petitioner is being violated. The petitioner is entitled to bail on this ground. The petitioner belongs to a respectable family and he 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 05.08.2023. They received a secret information that the petitioner was selling the drugs. The police reduced the information into writing and sent it to Dy. S.P. Baddi. The police associated the Drugs Inspector and two independent witnesses. The police reached the home of the petitioner where he was present. The search of the petitioner’s room was conducted in his presence during which the drugs mentioned above were recovered. The police seized the drugs and arrested the petitioner. The police conducted the investigation and arrested Amit Kumar as per the statement made by the petitioner. Amit Kumar disclosed the name of Anuj, who was also arrested. Amit Kumar had made various payments to Anuj. The tablets were sent to FSL. As per the report, Tramadol and Alprazolam were found in the tablets. The police conducted the investigation and arrested Amit Kumar as per the statement made by the petitioner. Amit Kumar disclosed the name of Anuj, who was also arrested. Amit Kumar had made various payments to Anuj. The tablets were sent to FSL. As per the report, Tramadol and Alprazolam were found in the tablets. The police presented the challan and the matter was listed for consideration of charge on 03.03.2025. Hence, the status report. 3. I have heard Mr. George, learned counsel for the petitioner and Mr. Tarun Pathak, learned Deputy Advocate General for respondent/State. 4. Mr George, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The police violated the mandatory provisions of the NDPS Act. The charge sheet was filed in the last week of September 2023, but the Court has not framed the charges. The right to speedy trial of the petitioner is being violated 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 he relied upon the following Judgements in support of his submission:- - Rabi Prakash Vs. The State of Odisha, Special Leave to Appeal (Crl.) No(s). 4169/2023, decided on 13.07.2023. - Mohd Muslim @ Hussain Vs. State (NCT of Delhi), 2023 LiveLaw (SC) 260. - Sreeja @ Sini Vs. State of Kerala, 2023:KER:68791 - Pratap Singh Vs. State of Himachal Pradesh, 2023(2) Andh Ld (Criminal) 18. - Gagan Deep Singh Vs. State of Himachal Pradesh, Cr.M.P.(M) No. 2674 of 2023, decided on 01.12.2023. - Mosin Ali Syed Vs. State of Himachal Pradesh, Cr.M.P.(M) No. 1882 of 2023, decided on 25.08.2023. - Jitan Sahni Vs. State of Himachal Pradesh, Cr.MP(M) No.1256 of 2024, decided on 13.08.2024. - Mohd. Enamul Haque Vs. Directorate of Enforcement, Cr. Appeal No. 3984 of 2024, decided on 23.09.2024. - Narender Kumar Vs. State of H.P., Cr.MP(M) No.2663 of 2022, decided on 08.09.2023. - Sirmranjit Singh Vs. Narcotics Control Bureau, Sub Zone Mandi, Cr.MP(M) No. 1756 of 2023, decided on 03.08.2023. - Manish Kumar Vs. State of Himachal Pradesh, Cr.MP(M) No. 2583 of 2023, decided on 01.12.2023. 5. Appeal No. 3984 of 2024, decided on 23.09.2024. - Narender Kumar Vs. State of H.P., Cr.MP(M) No.2663 of 2022, decided on 08.09.2023. - Sirmranjit Singh Vs. Narcotics Control Bureau, Sub Zone Mandi, Cr.MP(M) No. 1756 of 2023, decided on 03.08.2023. - Manish Kumar Vs. State of Himachal Pradesh, Cr.MP(M) No. 2583 of 2023, decided on 01.12.2023. 5. Mr Tarun Pathak, learned Deputy Advocate General for the respondent/State submitted that the copies of the order sheets filed by the petitioners show that he had sought various adjournments for consideration of the charge, and he cannot claim that his right to a speedy trial is being violated. The petitioner was found in possession of a huge quantity of the drugs, which could not have been meant for self-consumption. Drugs are adversely affecting the young generation of the society. 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. It is undisputed that the petitioner had earlier filed a bail petition before this Court, which was registered as Cr.MP(M) No. 1695 of 2024 titled Mohinder Singh Vs. State of H.P. and was dismissed on 29.08.2024. 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, 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. 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 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.” 10. A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380 , wherein it was observed: 9. 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 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.” 12. 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. 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.” 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 previous bail petition was dismissed by this Court on the ground that the petition was found in possession of a commercial quantity of the drugs. He had failed to satisfy the twin conditions laid down in Section 37 of the NDPS Act, and the integrity of the case property was established, therefore, the petitioner was not held to be entitled for bail. These circumstances have not changed. 15. It was submitted that the learned Trial Court has not framed the charge and there is a violation of the right of speedy trial of the petitioner. This submission is not acceptable. Copies of the order sheets show that learned counsel for the petitioner sought time on 19.09.2024 to file power of attorney and consideration of charge. The copies were stated to be complete and correct on 15.10.2024 and time was sought for consideration of charge on that day. This submission is not acceptable. Copies of the order sheets show that learned counsel for the petitioner sought time on 19.09.2024 to file power of attorney and consideration of charge. The copies were stated to be complete and correct on 15.10.2024 and time was sought for consideration of charge on that day. The time was again sought for consideration of the charge on 12.11.2024. The order sheets maintained by the learned Trial Court show that the time was sought for consideration of the charge on behalf of the petitioner on three occasions and the charge could not be framed by the learned Trial Court due to the adjournments sought by his counsel, therefore, the petitioner cannot claim that there is a delay in the progress of the trial and he is entitled to bail because of violation of his right to a speedy trial. He sought the adjournment and he cannot take advantage of his own wrong. Therefore, the judgments cited at the bar by learned counsel for the petitioner that the petitioner is entitled to bail when his right to a speedy trial is being violated do not apply to the present case. 16. In view of the above, the petitioner is not entitled to bail; hence, the present petition fails and the same is dismissed. 17. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.