Dismissed¶¶62

Firoj Alam v. State of Hp

Himachal Pradesh HC13 Dec 2024/2302/2024

Case brief

AI extract

What is this about?

Regular bail NDPS Act Section 22; Tramadol Hydrochloride capsules commercial quantity; Section 37 ND&PS Act twin conditions; successive/second bail application change of circumstances; hostile independent witnesses; trial delay caused by accused; FIR No. 162/2022 Police Station Majra District Sirmour; earlier bail petition Cr. MP(M) No. 797 of 2024 dismissed 22.07.2024; Captain Buddhikota Subha Rao; Kajad; Kalyan Chandra Sarkar; S.A. Raja; Prasad Shrikant Purohit; Ajay Rajaram Hinge; Cr.MP(M) No. 2302 of 2024; High Court of Himachal Pradesh; Rakesh Kainthla; petition dismissed 13.12.2024.

What did the court decide?

A subsequent bail petition can be considered only on the basis of a change in circumstances; filing a fresh bail application without such change amounts to an impermissible review of the earlier order. ¶¶54

Firoj Alam Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the petitioner's subsequent (second) bail petition can be entertained in the absence of a change in circumstances after the dismissal of his earlier bail application. +1 more

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Court's answer

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Ratio / Principle

The turning hostile of independent witnesses is hardly a reason to grant bail, as it is not unusual for independent witnesses to turn hostile in ND&PS Act cases.

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Key takeaways

Since the petitioner was found in possession of a commercial quantity of Tramadol Hydrochloride, the rigours of Section 37 ND&PS Act apply; the twin conditions laid down under Section 37 are not satisfied, so the petitioner is not entitled to bail.ratio¶¶59
The delay in the progress of the trial is attributable to the petitioner himself, who sought adjournments on two occasions when witnesses were present; a person cannot take advantage of his own wrongs, so delay cannot ground a claim for bail.ratio¶¶60

Detailed headnote1 paragraphs

NDPS bail refusal — Himachal Pradesh High Court (Rakesh Kainthla, J.), Cr.MP(M) No. 2302 of 2024, decided 13.12.2024: petitioner arrested under FIR No. 162 of 2022 (S.22 NDPS Act, PS Majra, Sirmour) after recovery of Tramadol Hydrochloride capsules (1.239 kgs per status report; commercial quantity undisputed). Court holds that a successive bail application is entertainable only on a substantive change in circumstances and cannot review the earlier dismissal (relying on State of Maharashtra v. Captain Buddhikota Subha Rao, State of M.P. v. Kajad, Kalyan Chandra Sarkar, State of T.N. v. S.A. Raja, Prasad Shrikant Purohit and Ajay Rajaram Hinge); hostility of independent witnesses is no ground for bail; the twin conditions of S.37 ND&PS Act are unsatisfied; trial delay was self-caused by the petitioner's adjournments. Petition dismissed; observations confined to the petition and bearing nothing on merits.

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( 2024:HHC:14452 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No. 2302 of 2024 Reserved on: 29.11.2024 Date of Decision: 13.12.2024

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Firoj Alam ...Petitioner

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Versus

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State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr. Anubhav Chopra, Advocate, vice Mr. Rahul Singh, Advocate. For the Respondent : Mr Lokender Kutlehria, Additional Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 162 of 2022, dated 27.09.2022, registered for the commission of an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) at Police Station Majra, District Sirmour, H.P.

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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( 2024:HHC:14452 )

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It has been asserted that the petitioner was found in possession of 1700 capsules of PYN SPAS PLUS as per the prosecution. The petitioner had earlier filed a regular bail petition titled Firoz Alam versus State of H.P, being Cr. MP(M) No. 797 of 2024, which was dismissed by this Court on 22.07.2024. Independent witnesses have turned hostile during the trial and have not supported the prosecution case. The petitioner is in custody for a considerable period, and his trial is likely to take some more time. His custody is not justified. The petitioner is ready and willing to abide by all the terms and conditions, which the Court may impose. Bail is the rule, and the jail is an exception; hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 27.9.2022. Secret information was received at 12.40 PM that petitioner Firoz Alam was selling capsules, and he was present near Pundeer Dhaba, Surajpur. He was carrying a huge quantity of capsules. The police reduced the information into writing and sent it to the superior officers. The police associated independent witnesses. The police reached the spot where the petitioner was

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( 2024:HHC:14452 )

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found with a motorcycle bearing registration No. UP-11AJ-0302. The police searched the motorcycle and recovered a bag containing 1723 capsules of Tramadol Hydrochloride. Their weight was found to be 1.239 kgs. The police seized the capsules and motorcycle and arrested the petitioner. As per the result of the chemical analysis, the capsules indicated the presence of Tramadol. The petitioner had a huge quantity of capsules without any licence. The challan was prepared and presented before the Court on 27.2.2023. The matter was listed for prosecution evidence on 12.11.2024. Hence, the status report.

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I have heard Mr. Anubhav Chopra, learned vice counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

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Mr. Anubhav Chopra, learned vice counsel for the petitioner, submitted that the independent witnesses have not supported the prosecution case. The prosecution has failed to complete the evidence within a reasonable time, and the trial is likely to take some more time. The petitioner will abide by all the terms and conditions which the Court may impose. Therefore, he prayed that the present petition be allowed and the petitioner be

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( 2024:HHC:14452 )

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released on bail. He has relied upon the judgment of the Hon’ble Supreme Court in Kishor Karmakar versus State of Odisha, Petition(s) for Special Leave to Appeal (Crl.) No(s). 8263/2024, decided on 01.07.2024 , and this Court in Pratap Singh versus State of H.P., Cr.MP(M) No. 2401 of 2023, decided on 31.10.2023 , in support of his submission.

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Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the Court had earlier found that the prosecution had produced the witnesses on two occasions. The Court was ready to examine them but could not examine them because the accused had stated on both occasions that he wanted to change the counsel. The petitioner has caused the delay, and he cannot say that there is a delay in the progress of the trial; therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It is undisputed that the petitioner had filed the bail petition earlier, which was dismissed. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC

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( 2024:HHC:14452 )

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605 that once a bail application has been dismissed, subsequent

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bail application can only be considered if there is a change of circumstances. It was observed:

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“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. 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.

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9. Similar is the judgment delivered in State of M.P. v.

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Kajad , (2001) 7 SCC 673 , wherein it was observed: -

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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.

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( 2024:HHC:14452 )

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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:

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“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.”

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A similar view was taken in State of T.N. v. S.A. Raja,

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(2005) 8 SCC 380 , wherein it was observed:

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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.

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( 2024:HHC:14452 )

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12. This position was reiterated in Prasad Shrikant Purohit

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v. State of Maharashtra (2018) 11 SCC 458 , wherein it was observed:

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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.

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It was held in Ajay Rajaram Hinge v. State of

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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:

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7. It needs to be noted that the right to f i le successive bail applications accrues to the applicant only on the existence of a material change in circumstances. The sine qua non for f i ling 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 fnding has become obsolete. However, change in i 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 of f ence the right to f i le a fresh bail application. But, the power to decide such subsequent

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( 2024:HHC:14452 )

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application operates in a completely dif f erent sphere unconnected with the facts of a case. Such power is based on the well-settled and judicially recognised principle that if successive bail applications on the same subject are permitted to be disposed of by dif f erent Judges, there would be conf l icting 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 conf i dence 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 f i le a subsequent bail application.”

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Therefore, the present bail petition can only be considered based on the change in the circumstances, and it is not permissible to review the order passed by the Court.

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It has been submitted that the petitioner is entitled to bail because the independent witnesses have turned hostile. This is hardly any reason to grant bail because it is not unusual for independent witnesses to turn hostile in ND&PS Act cases; therefore, the petitioner cannot be released on bail on this ground.

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It is undisputed that the petitioner was found in possession of a commercial quantity of Tramadol Hydrochloride,

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¶58

( 2024:HHC:14452 )

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and rigours of Section 37 of the ND&PS Act apply to the present case. There is nothing to satisfy the twin conditions laid down under Section 37 of the ND&PS Act; therefore, the petitioner cannot be held entitled to bail.

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It was submitted that there is a delay in the progress of the trial. This submission will not help the petitioner because the petitioner is responsible for the delay. He had sought the adjournment on two occasions when the witnesses were present in the Court. A person cannot take advantage of his own wrongs, and it cannot be said that the petitioner is entitled to bail on the ground of delay.

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18. No other point was urged.

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In view of the above, the present petition fails, and the same is dismissed. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla)

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Judge

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13^th December, 2024 (Shamsh Tabrez)

Firoj Alam v. State of Hp

Case brief

What is this about?

What did the court decide?

Firoj Alam v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

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