Goldy Vs State of Hp

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the ND&PS Act’), vide FIR No. 394 of 2020, dated 22.12.2020, registered at Police Station Nalagarh, District Solan, H.P. The petitioner has been

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falsely implicated. He was employed as a cleaner in the truck

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

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before the incident. The driver and the owner of the vehicle were arrayed as accused. The petitioner has been in custody for more than four years. The trial is at the initial stage. Out of 23 witnesses 07 witnesses have been examined, and the matter is now listed for examination of the witnesses at Serial Nos 1, 3, 4 and 5 on 17.5.2025. The petitioner would abide by the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 22.12.2020. The police received a secret informant at 6:30 a.m. that Balbir Singh, the driver, and Goldy (the present petitioner), the cleaner of the truck bearing No. HP93-2654 were selling poppy straw from their vehicle. The police reduced this information to writing and forwarded it to the Superior OfÏcer. Upon arriving at the scene, the police found one individual in the parked truck, who identified himself as Goldy (the present petitioner). He also stated that Balbir Singh had left and would return shortly. The police searched for Balbir Singh but were unable to locate him. The ofÏcers inspected the truck in the presence of Dy.S.P. Arun Modi and recovered nine

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bags containing 189.137 kg of poppy straw. The police seized the poppy straw and the truck before arresting the petitioner. The poppy straw was sent to SFSL Junga, and the results of the analysis confirmed it was indeed a sample of poppy straw. Balbir Singh committed suicide on 04.01.2021. The challan was prepared and presented before the Court on 12.03.2021. Seven (7) witnesses have been examined so far, and the matter was listed on 17.5.2025 for recording the statements of prosecution witnesses. Hence, the status report.

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I have heard Mr. Gurdev Negi, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State.

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Mr. Gurdev Negi, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The prosecution has not examined any witnesses since the dismissal of the earlier petition. There is no progress in the trial, and the right to a speedy trial of the petitioner is being violated. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that the summons are being issued and the prosecution has examined seven witnesses. There is no delay in the progress of the trial. Hence, it was 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 a bail petition, which was registered as Cr.MP(M) No. 1355 of 2024 and was dismissed by the Court on 14.8.2024. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989)

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Suppl. 2 SCC 605, that once a bail application has been dismissed, a 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

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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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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 v.

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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

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consider why the subsequent bail application should be

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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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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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This position was reiterated in Prasad Shrikant

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

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observed:

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“30. Before concluding, we must note that though an accused has a right to make successive applications for the grant of bail, the court entertaining such subsequent bail applications has a duty to consider the

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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 a successive bail application can be filed if there is a material change in the circumstances, which means a 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, a change in circumstance has no bearing on the salutary principle of judicial propriety that successive bail application needs to be decided by the same Judge on the 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 wellsettled 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

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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.”

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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.

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The Court noticed in the order dated 14.8.2024 that seven witnesses were examined and the matter was listed on 30.7.2024. Status report dated 21.4.2025 also reads that seven witnesses have been examined and the matter is now listed on 17.5.2025. This shows that the trial has not progressed within eight months.

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Mr. Ajit Sharma, learned Deputy Advocate General, submitted that the summons is being issued to the witnesses, and the witnesses are not appearing. The prosecution cannot be faulted for the non-appearance of the witnesses. This

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submission is not acceptable. It was held by the Hon’ble Supreme Court in Shailendra Kumar vs. State of Bihar and others (2002) 1 SCC 655 that the Investigating OfÏcer must remain present during the trial and keep the witnesses present. If there is a violation on the part of the witnesses to remain present, the Court has to take proper action, including the issuance of bailable/non-bailable warrants as the case may be. It was observed: -

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“9. In our view, in a murder trial, it is a sordid and repulsive matter that, without informing the police station ofÏcer-in-charge, the matters are proceeded by the court and by the APP and tried to be disposed of as if the prosecution had not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means, and it appears that by one way or the other, the addl. The Sessions judge, as well as the APP, have not taken any interest in the discharge of their duties. It was the duty of the session judge to issue a summons to the investigating ofÏcer if he failed to remain present at the time of the trial of the case. The presence of an investigating ofÏcer at the time of trial is a must. It is his duty to keep the witnesses present. If there is a failure on the part of any witness to remain present, it is the duty of the court to take appropriate action, including the issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in the lurch.” (Emphasis supplied)

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Therefore, primarily, it is for the Investigating OfÏcer to remain present and produce the witnesses during the Trial, and this duty cannot be fulfilled by saying that the summons is being issued.

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The petitioner has been in custody since 21.12.2020. More than four years have elapsed since the petitioner has been in custody. The prosecution has not completed the evidence within the period of four years, and there is no likelihood of the early conclusion of the trial, keeping in view the fact that the matter is only listed on one day and not consecutively.

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It was laid down in Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352 that the right to a speedy trial is a constitutional right of an accused. The right of bail is curtailed on the premise that the trial would be concluded expeditiously. It was observed: -

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“13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest - as observed in Vaman Narain Ghiya v. State of Rajasthan, [2008] 17 SCR 369:

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(2009) 2 SCC 281 ('the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal....'). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3 SCC 569 made observations to this effect. In Shaheen Welfare Association v. Union of India, [1996] 2 SCR 1123: (1996) 2 SCC 616 again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on:

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A conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under-trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efÏciently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods.”

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The Court highlighted the effects of pre-trial detention and the importance of a speedy trial as under:

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“22. Before parting, it would be important to reflect that laws which impose stringent conditions for the grant of bail may be necessary in the public interest; yet, if trials are not concluded in time, the injustice wreaked on the

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individual is immeasurable. Jails are overcrowded, and their living conditions, more often than not, are appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as of 31^st December 2021, over 5,54,034 prisoners were lodged in jails against a total capacity of 4,25,069 lakhs in the country[ National Crime Records Bureau, Prison Statistics in India https://ncrb. gov. in/sites/default/files/P SI-202 1/Executive ncrb Summary2021.pdf ]. Of these 122,852 were convicts; the rest, 4,27,165 were undertrials.

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The danger of unjust imprisonment is that inmates are at risk of 'prisonisation', a term described by the Kerala High Court in A Convict Prisoner v. State, 1993 Cri LJ 3242, as a radical transformation whereby the prisoner:

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'loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity, and autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Selfperception changes. '

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There is a further danger of the prisoner turning to crime, 'as crime not only turns admirable but the more professional the crime, more honour is paid to the criminal'[ Working Papers - Group on Prisons & Borstals - 1966 U.K. ] (also see Donald Clemmer's 'The Prison Community' published in 1940[ Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, 'Donald Clemmer's Concept of Prisonisation', available at: https://www.tkp.edu.pl/

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wpcontent/uploads/2020/12/Sobecki_sklad.pdf (accessed on 23rd March 2023). ]). Incarceration has further deleterious effects, where the accused belongs to the weakest economic strata: immediate loss of livelihood,

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and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts, therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases where special laws enact stringent provisions, are taken up and concluded speedily.”

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It was held in Shaheen Welfare Association. v. Union

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of India, (1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot be kept behind the bars when there is no prospect of trial being concluded expeditiously. It was observed at page 621:

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“8. It is in this context that it has become necessary to grant some relief to those persons who have been deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and the nation needs to be safeguarded looking to the nature of the offences these undertrials have been charged with. But the ultimate justification for such deprivation of liberty pending trial can only be their being found guilty of the offences for which they have been charged. If such a finding is not likely to be arrived at within a reasonable time, some relief becomes necessary.”

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Similarly, it was laid down by the Hon’ble Supreme

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Court in Jagjeet Singh v. Ashish Mishra , (2022) 9 SCC 321: (2022)

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3 SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be subjected to unending detention pending trial. It was observed at page 335:

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“40. Having held so, we cannot be oblivious to what has been urged on behalf of the respondent-accused that cancellation of bail by this Court is likely to be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed under Article 21 of the Constitution (see Union of India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713 , paras 15 and 17] ).”

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It was laid down by the Hon’ble Supreme Court

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recently in Javed Gulam Nabi Shaikh v. State of Maharashtra (2024) 9 SCC 813: 2024 SCC OnLine SC 1693 that the right to speedy trial of the offenders facing criminal charges is an important facet of Article 21 of the Constitution of India and inordinate delay in the conclusion of the trial entitles the accused to grant of bail, it was observed at page 817: -

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“ 10. Long back, in Hussainara Khatoon (1) v. State of Bihar [Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81: 1980 SCC (Cri) 23] , this Court had declared that the right to speedy trial of offenders facing criminal

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charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court”. Remarking that a valid procedure under Article 21 is one which contains a procedure that is “reasonable, fair and just”, it was held that : (SCC p. 89, para 5)

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“ 5 . … Now obviously procedure prescribed by law for depriving a person of liberty cannot be “reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that a speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied a speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long-delayed trial in violation of his fundamental right under Article 21.”

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11. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya v. State of Bihar [Kadra Pahadiya v. State of Bihar, (1981) 3 SCC 671: 1981 SCC (Cri) 791] and Abdul Rehman Antulay v. R.S. Nayak [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225: 1992 SCC (Cri) 93] . In the latter, the court re-emphasised the right to a speedy trial and further held that an accused, facing a prolonged trial, has no option: ( Abdul Rehman Antulay case [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225: 1992 SCC (Cri) 93] , SCC p. 269, para 84)

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“ 84 . … The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused

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come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands a speedy trial and yet he is not given one, it may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to a speedy trial on the ground that he did not ask for or insist upon a speedy trial.”

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It was further held that if the State or any prosecuting agency, including the Court concerned, has no wherewithal to provide the right of speedy trial to the accused, then the bail should not be opposed on the ground that the crime is serious. It was observed at page 820:

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17. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

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18. We may hasten to add that the petitioner is still an accused, not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

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19. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be

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said to have been infringed, thereby violating Article 21 of the Constitution.

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In the present case, the prosecution has only

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examined seven witnesses within four years. The prosecution cannot be permitted to prolong the trial and keep the accused in custody. The constitutional right of freedom has to be weighed against the protection of society, and a balance has to be struck by the Court. If the Investigating Agency fails to discharge its duty of concluding the trial expeditiously, the accused has a right to be released on bail.

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In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: -

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(I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever;

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(II) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments;

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(III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the

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SHO, the Police Station concerned and the Trial Court;

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(IV) The petitioner will surrender his passport, if any, to the Court; and

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(V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/ WhatsApp/ Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

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The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of Model Central Jail, Kanda, District Shimla, H.P. and the learned Trial Court by FASTER.

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

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(Rakesh Kainthla) Judge

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01^st May, 2025 (Chander)

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, KARAN OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225878f23c9ea 27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SINGH SERIALNUMBER=f72cf9165791d55ec939375291962d0d 90d094876bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document GULERIA Location:

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Date: 2025-05-01 17:35:03

Goldy v. State of Hp

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Goldy v. State of Hp

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