Dismissed

Amit Kumar v. State of Hp

Himachal Pradesh HC6 Dec 2024CRMPM/1952/2024

Case brief

AI extract

What is this about?

The High Court dismissed two bail petitions filed under CrPC Section 439 for offences under the NDPS Act. The court held that the petitioners failed to demonstrate a material change in circumstances from their earlier dismissed bail application. Additionally, the commercial quantity of drugs involved attracted Section 37 safeguards, and the prima facie evidence indicated involvement, precluding ba

What did the court decide?

The petitions for grant of bail were dismissed stating that the petitioners failed to satisfy the conditions under Section 37 of the NDPS Act and there was no material change of circumstances from the

Amit Kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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( 2024:HHC:13653 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) Nos. 1952 and 2372 of 2024 Reserved on: 29.11.2024 Date of Decision: 06.12.2024.

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1. Cr. MP (M) No. 1952 of 2024 Amit Kumar ...Petitioner Versus State of Himachal Pradesh …Respondent 2. Cr.MP(M) No. 2372 of 2024 Anuj Kumar …Petitioner Versus State of Himachal Pradesh ...Respondent

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No For the Petitioner(s) : Ms. Meera Devi, Advocate in Cr.MP(M) No. 1952 of 2024 Mr. V.S. Rathore, Advocate in Cr.MP(M) No. 2372 of 2024

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

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For the Respondent/State: Mr. Lokender Kutlehria, Additional Advocate General in both the petitions.

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Rakesh Kainthla, Judge

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The petitioners have filed the present petitions for seeking regular bail. It has been asserted that the petitioners were arrested vide FIR No. 210/2023, dated 05.08.2023, registered at Police Station Baddi, District Solan, H.P. for the commission of offences punishable under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’).

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The petitioners are innocent, and they were falsely implicated in the present FIR. Petitioner – Anuj Kumar had earlier filed a bail petition bearing Cr.MP(M) No. 2849 of 2023, which was dismissed on 01.12.2023. The petitioners would abide by all the terms and conditions, which may be imposed by the Court. Petitioner- Anuj Kumar was apprehended based on a Whatsapp conversation and the inadmissible statement of coaccused Mohinder. The prosecution has cited thirty-three witnesses, and the trial is likely to take considerable time; therefore, it was prayed that the present petitions be allowed and the petitioners be released on bail.

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The petition was opposed by filing a status report, asserting that the Police searched the house of Mohinder based on the information and recovered 14500 tablets weighing 5133 grams of Tramadol Hydrochloride, 11400 tablets weighing 1413.6 grams of Alprazolam tablets, 600 tables of Alprazolam weighing 61.2 grams. The drugs were seized. The screenshot of the WhatsApp chat was taken into possession. Amit Kumar was arrested, and as per the Whatsapp chat, the drugs were supplied by Anuj Sharma. As per the report of analysis, the drugs were found to be Tramadol and Alprazolam. The challan was prepared and presented before the Court. Petitioner – Amit Kumar’s account details were checked and it was found that ₹10,000/were transferred on 22.07.2023, and ₹47,500/- were transferred on 24.07.2023 to the account of petitioner- Anuj Kumar. A supplementary challan was filed before the learned Court, and the matter was listed on 19.09.2024 for consideration of charge. Hence, the status report.

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I have heard Ms Meera Devi, learned counsel for the petitioner- Amit Kumar, Mr V.S. Rathore, learned counsel for petitioner- Anuj Kumar and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

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Ms Meera Devi, learned counsel for the petitionerAmit Kumar, submitted that the petitioner is innocent and he was falsely implicated in the present FIR. The charge has not been framed, and there is no likelihood of an early conclusion of the trial; therefore, she prayed that the present petition be allowed and the petitioner be released on bail.

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Mr V.S. Rathore, learned counsel for the petitionerAnuj Kumar, submitted that the petitioner was arrested based on the statement made by the co-accused and the screenshot of the Whatsapp conversation. These are not legally admissible evidence, and there is no evidence to connect the petitioner with the commission of a crime. Hence, he prayed the 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 petitioners had supplied a commercial quantity of Tramadol and Alprazolam to their co-accused and rigours of Section 37 of ND&PS Act apply to the present case. Hence, he prayed that the present petitions be dismissed.

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

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed as under: -

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“ 19. Courts, while granting bail, are required to consider relevant factors such as the nature of the accusation, the role ascribed to the accused concerned, possibilities/chances of tampering with the evidence and/or witnesses, antecedents, flight risk, et al . Speaking through Hima Kohli, J., the present coram in Ajwar v. Waseem, 2024 SCC OnLine SC 974 , apropos relevant parameters for granting bail, observed:

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“ 26. While considering 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. (2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav (supra) (2004) 7 SCC 528; Masroor v. State of Uttar Pradesh (2009) 14 SCC 286; Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; Neeru Yadav v. State of Uttar Pradesh (2014) 16 SCC 508; Anil

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Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129; Mahipal v. Rajesh Kumar @ Polia (supra) (2020) 2 SCC 118 .

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27. It is equally well settled that bail, once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the Superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a Superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order. In P v. State of Madhya Pradesh (supra) (2022), 15 SCR 211 decided by a three-judge bench of this Court [authored by one of us (Hima Kohli, J)] has spelt out the considerations that must be weighed with the Court for interfering in an order granting bail to an accused under Section 439(1) of the CrPC in the following words:

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“24. As can be discerned from the above decisions, for cancelling bail once granted, the court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial [Dolat Ram v. State of Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To put it differently, in ordinary circumstances, this Court would be loathe to interfere with an order passed by the court below granting bail, but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the appellate court.” (emphasis supplied)

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20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC 1085 , speaking through one of us (Ahsanuddin

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Amanullah, J.), the Court, while setting aside an order of the Punjab and Haryana High Court granting (anticipatory) bail, discussed and reasoned:

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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 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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8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC 118 , this Court opined as under:

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‘16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. …’

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9. In Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 INSC 761 , this Court, in view of Dolat Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of Telangana, (2018) 16 SCC 511 , held as follows:

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‘13 . It is also required to be borne in mind that when a prayer is made for the cancellation of the grant of bail, cogent and overwhelming circumstances must be present, and bail, once granted, cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws support from the Judgment of this Court in Daulat Ram v. State of Haryana (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and XXX v. State of Telangana (2018) 16 SCC 511 .’

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10. In XXX v. Union Territory of Andaman & Nicobar Islands, 2023 INSC 767 , this Court noted that the principles in Prasanta Kumar Sarkar (supra) stood reiterated in Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321 .

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11. The contours of anticipatory bail have been elaborately dealt with by 5-Judge Benches in Gurbaksh

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Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1. Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 is worthy of mention in this context, despite its partial overruling in Sushila Aggarwal (supra) . We are cognizant that liberty is not to be interfered with easily. More so when an order of prearrest bail already stands granted by the High Court.

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12. Yet, much like bail, the grant of anticipatory bail is to be exercised with judicial discretion. The factors illustrated by this Court through its pronouncements are illustrative and not exhaustive. Undoubtedly, the fate of each case turns on its own facts and merits.” (emphasis supplied)

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21. In Ajwar (supra), this Court also examined the considerations for setting aside bail orders in terms below:

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“ 28. The considerations that weigh with the appellate Court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined, and detailed reasons relating to the merits of the case that may cause prejudice to the accused ought to be avoided. Suffice it to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused.

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29. In Jagjeet Singh (supra) (2022) 9 SCC 321 , a threejudge bench of this Court has observed that the power to grant bail under Section 439 Cr. P.C. is of wide amplitude and the High Court or a Sessions Court, as the case may be, is bestowed with considerable discretion

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while deciding an application for bail. But this discretion is not unfettered. The order passed must reflect the due application of the judicial mind following well-established principles of law. In the ordinary course, courts would be slow to interfere with the order where bail has been granted by the courts below. But if it is found that such an order is illegal or perverse or based upon utterly irrelevant material, the appellate Court would be well within its power to set aside and cancel the bail. (Also refer: Puran v. Ram Bilas (2001) 6 SCC 338; Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC 584) ” (emphasis supplied)

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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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It is undisputed that petitioner- Anuj Kumar had earlier filed a petition bearing Cr.MP(M) No. 2849 of 2023, which was dismissed by this Court on 01.12.2023 after holding that coaccused - Mohinder was found in possession of a commercial quantity of Tramadol. WhatsApp conversation of co-accusedMohinder showed that the drugs were supplied by petitioner – Amit Kumar. The police also found that petitioner – Amit Kumar had obtained the drugs from petitioner- Anuj Kumar. PetitionerAmit Kumar had transferred various amounts to petitioner- Anuj Kumar. The WhatsApp conversation and transfer of money showed that petitioner- Anuj Kumar had supplied drugs to petitioner- Amit Kumar, who had supplied them to co-accused

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Mohinder. Thus, there was sufficient material to connect petitioner- Anuj Kumar, with the commission of crime. 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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“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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12. 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

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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 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

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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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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 f i nding 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

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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 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 confdence of the other side being put in i 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 was submitted that the WhatsApp conversations are not admissible. This submission cannot be accepted at this stage. The admissibility of the evidence will be seen during the trial. Prima-facie , it is an electronic record and admissible as evidence. The transfer of the money by petitioner- Amit Kumar

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to the petitioner – Anuj Kumar, prima-facie establishes, at this stage, that the petitioner- Anuj Kumar, had supplied the drugs to the petitioner – Amit Kumar, who had supplied them to coaccused Mohinder, from whose possession they were recovered. Since the quantity involved is commercial in nature, the rigours of Section 37 of the ND&PS Act apply to the present case.

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In the present case, there is nothing on record to show that the petitioners are not connected to the commission of a crime. On the other hand, the material collected by the prosecution, prima facie, shows their involvement, as stated above. Further, there is no material on record to show that the petitioners will not commit similar offence in case they are released on bail. Hence, the petitioners are unable to satisfy the twin conditions laid down under Section 37 of the ND&PS Act.

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It was submitted that there is a delay in the progress of the trial. The charge has not been framed so far. The copies of order sheets were not filed to establish this plea at this stage. Therefore, it cannot be said that the prosecution or the Court is responsible for the delay in the framing of charges, and the petitioners cannot be held entitled to bail on the ground of delay in the framing of charges.

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