Dismissed

Suraj kumar v. State of Hp

Himachal Pradesh HC16 Sept 2024CRMPM/1504/2024

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed a regular bail petition filed by an accused charged under Section 20 of the NDPS Act for possession of commercial quantity of charas. The Court held that Section 37 mandates strict bail conditions which were satisfied given the lack of evidence proving innocence and the need to prevent further drug trafficking, and noted no material change in circumstan

What did the court decide?

The petition was dismissed, denying regular bail to the petitioner as he failed to satisfy the mandatory conditions under Section 37 of the NDPS Act.

Suraj kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8603 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 1504 of 2024 Reserved on: 23.08.2024 Date of Decision: 16.09.2024

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Suraj Kumar ...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 : Ms. Kanta Thakur, 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 by the police of Police Station Patlikuhal, District Kullu, on 10.02.2022 for the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) vide FIR No. 14 of 2022, dated 10.02.2022 for the possession of 1.354 Kgs of charas.

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As per the prosecution, the Special Investigation Unit, Kullu

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

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2 Neutral Citation No. ( 2024:HHC:8603 )

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received a secret information that the petitioner was going to deliver charas to someone near the grocery shop at village Pararhi. The police associated two independent witnesses and noticed the petitioner with a backpack at about 4:30 pm. The police stopped the petitioner, searched his backpack and recovered 1.354 Kgs of Charas. The investigation has been completed. The charge sheet has been filed before the Court. The petitioner has been in judicial custody for more than two years and four months. There is an inordinate delay in the trial. The material witnesses have been examined and the petitioner is not in a position to influence the witnesses; therefore, 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 10.02.2022 when a secret information was received that the petitioner would bring the charas and hand it over to someone near the Pari Karyana Store. The Police associated two independent witnesses and sent the information to the Superior Officer after reducing it into writing. The police waited for the petitioner and found him at about 4:30 pm. He was carrying a

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3 Neutral Citation No. ( 2024:HHC:8603 )

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backpack. The police apprehended him and checked his backpack. The police recovered 1.354 Kgs of charas. Police arrested the petitioner and seized the charas. As per the report of analysis, the charas had 31.54% w/w resin in it. The challan was filed and presented before the Court on 05.04.2022. 10 witnesses out of 18 have been examined and three have been given up. The matter is now listed for recording the statement of the witnesses at Sr. Nos.7 and 15 on 12.09.2024. The petitioner was found in possession of the commercial quantity of the charas; therefore, it was prayed that the present petition be dismissed.

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I have heard Ms. Kanta Thakur, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

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Ms Kanta Thakur, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He has been in custody for more than two years and four months. His trial has not been concluded and his right to a speedy trial is being violated; therefore, she prayed that the

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present petition be allowed and the petitioner be released on bail.

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Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State submitted that the petitioner was found in possession of a commercial quantity of charas. The rigours of Section 37 of the NDPS Act apply to the present case. The prosecution has examined ten witnesses, three have been given up and only five witnesses are to be examined. There is no delay in 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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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: -

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“ 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

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Neutral Citation No. ( 2024:HHC:8603 )

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parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(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;

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(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.

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(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.

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(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.

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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 has been explained in the following words:

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“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. 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

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Neutral Citation No. ( 2024:HHC:8603 )

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accused is charged of 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:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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( b ) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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( 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. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124 ].)”

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A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

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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:

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‘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. It is well settled that, among other

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7 Neutral Citation No. ( 2024:HHC:8603 )

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circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The status report shows that the police apprehended

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the petitioner with a backpack containing 1.354 Kgs of charas. The charas were sent to FSL and as per the result of the analysis, it had 31.54% w/w resin in it. 1.354 Kgs of charas falls within the definition of the commercial quantity and the rigours of Section 34 of the NDPS Act apply to the present case.

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Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an

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offence and is not likely to commit any offence while on bail. Section 37 of the NDPS Act reads as under:

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“37. Offences are to be cognizable and non-bailable. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

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(a) every offence punishable under this Act shall be cognizable;

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(b) no person accused of an offence punishable for offences under section 19 section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or his own bond unless–

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(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

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(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.

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(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

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This Section was interpreted by the Hon'ble Supreme

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Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC

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738 and it was held that in the absence of the satisfaction that the accused is not guilty of an offence and he is not likely to

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Neutral Citation No. ( 2024:HHC:8603 )

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commit an offence while on bail, he cannot be released on bail. It was observed:

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“7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said Section. They are :

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(1) In the case of a person accused of an offence punishable under Section 19,

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(2) Under Section 24,

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(3) Under Section 27A and

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(4) Of offences involving commercial quantity.

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The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment.

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(1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence;

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(2) that person is not likely to commit any offence while on bail.”

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This position was reiterated in State of Kerala Versus

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Rajesh AIR 2020 SC 721 wherein it was held:

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“19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under the NDPS Act. In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429 , it has been elaborated as under:-

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Neutral Citation No. ( 2024:HHC:8603 )

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"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. Chief Secy., Union Territory of Goa, (1990) 1 SCC 95) as under:

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With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

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Neutral Citation No. ( 2024:HHC:8603 )

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To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

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(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

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(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

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The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with the non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application, and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

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The expression "reasonable grounds" means something more than prima facie grounds. It contemplates

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substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.”

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A similar view was taken in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC

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OnLine SC 1237 wherein it was observed at page 110:

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“21. Under Section 37(1)( b )( ii ), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27-A and also for offences involving a commercial quantity are:

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( i ) The Prosecutor must be given an opportunity to oppose the application for bail; and

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(ii) There must exist “reasonable grounds to believe” that : ( a ) the person is not guilty of such an offence; and ( b ) he is not likely to commit any offence while on bail.

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22. The standard prescribed for the grant of bail is “reasonable ground to believe” that the person is not guilty of the offence. Interpreting the standard of “reasonable grounds to believe”, a two-judge Bench of this Court in Shiv Shanker Kesari [ Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505 ], held that : (SCC pp. 801-02, paras 7-8 & 10-11)

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“ 7 . The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means

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something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to the existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence charged.

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8 . The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”.

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‘ 7 . … Stroud's Judicial Dictionary , 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word “reasonable”. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.’

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[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532 ] ]

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10 . The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis, it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315 ]

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14 Neutral Citation No. ( 2024:HHC:8603 )

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11 . The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.”

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(emphasis supplied)

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23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.” 14. In the present case, there is no material to show that

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the petitioner has not committed the offence punishable under Section 20(b)(ii)(c) of the NDPS Act; rather the material on record clearly shows that the petitioner was found in possession of the commercial quantity of Charas. Hence, the petitioner is not entitled to bail in view of the rigours of Section 37 of the NDPS Act.

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It was submitted that there is a delay in the progress

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of the trial and the right of speedy trial of the petitioner is being

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15 Neutral Citation No. ( 2024:HHC:8603 )

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violated. The petitioner has relied upon the copies of order sheets dated 13.10.2023, 23.02.2024, and 09.04.2024. The order sheet dated 09.04.2024 reads that the last opportunity was granted to the prosecution to produce the witnesses at Sr. Nos. 4, 5, 15 and 16. Now the matter is listed for 12.09.2024 for recording the statements of the witnesses at Sr. Nos. 7 and 15. These order sheets do not show that there is any delay in conducting the trial and the petitioner cannot be held entitled to bail on the ground that his right to speedy trial is being violated.

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A perusal of the record further shows that the petitioner had filed a bail petition i.e. Cr.MP(M) No. 2844 of 2023 titled Suraj Kumar@Janu vs. State of H.P., which was dismissed on 08.12.2023 on the ground that the petitioner was found in possession of a commercial quantity of charas. He was not able to satisfy the twin conditions laid down under Section 37 of the NDPS Act. These circumstances have not changed. 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:

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16 Neutral Citation No. ( 2024:HHC:8603 )

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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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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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Similarly, it was held in Kalyan Chandra Sarkar Vs.

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Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an

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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.”

¶131

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:

¶133

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.

¶134

This position was reiterated in Prasad Shrikant

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Purohit 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,

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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 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 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

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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.”

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Since there is no change in the circumstance,

¶146

therefore, the petitioner cannot be held entitled to bail. Hence, the present petition fails and the same is dismissed.

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The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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16^th September, 2024 (saurav pathania)

Suraj kumar v. State of Hp

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Suraj kumar v. State of Hp

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