Vijay Kumar Vs State of Hp

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No. 240 of 2023, dated 18.11.2023, registered for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) at Police Station Sadar, District Solan, H.P. The petitioner is innocent and he was falsely implicated. He was

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

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arrested on 18.11.2023 and is lodged in District Jail Solan. The charge sheet has been filed and no fruitful purpose would be served by detaining the petitioner in custody. The prosecution has examined three witnesses out of 24 witnesses cited in the charge sheet. The conclusion of the trial will take some time, therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The police filed a status report asserting that the police party was on patrolling duty on 18.11.2023 when a secret information was received that Vijay Kumar and Rahul were staying in Room No. 104 of Sona Guest House and they had brought a huge quantity of Heroin. The information was reduced into writing. Room No. 104 was searched and 7.34 grams of heroin was recovered during the search. Rahul and petitioner Vijay were found in the room. The police arrested them and seized the heroin. They were interrogated. Narinder Singh and Mohit Lakhanpal were arrested based on the disclosure statements made by Rahul and petitioner Vijay. The result of the analysis shows that the sample stated to be heroin was a sample of Diacetylmorphine (Heroin). One accused, Harjot Singh, was also arrested after filing the charge sheet. F.I.R. No. 339 of 204, dated 20.10.2004, for the

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commission of offences punishable under Sections 418, 451, and 506 of the Indian Penal Code (IPC), was registered against the petitioner at the police station (P.S.) Sadar in which he was acquitted. F.I.R. No. 127 of 2023, dated 20.06.2023, was registered against the petitioner at P.S. Sadar, Solan, for the commission of offences punishable under Sections 21 & 29 of the NDPS Act. F.I.R. No. 15/20 dated 19.03.2020 was registered against the petitioner at Women Police Station (WPS) Solan, H.P. for the commission of offences punishable under Sections 376, 376 D, 511, 354, 34 of IPC and Section 12 of Protection of Children from Sexual Offences (POCSO) Act. The challan was presented before the learned Trial Court on 15.01.2024. The matter is now listed for the prosecution evidence on 03.05.2025; hence, the status report.

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I have heard Mr. Parikshit Rathour, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State.

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Mr Parikshit Rathour, learned counsel for the petitioner, submitted that the petitioner was found in possession of 7.34 grams of heroin, which is slightly more than the small quantity. The other co-accused have been released on bail. The

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previous bail petition was dismissed by this Court on the ground that the petitioner has criminal antecedents. The prosecution has failed to complete the evidence within 15 months. The right of 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. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the petitioner has criminal antecedents and he is likely to commit a similar offence in case of his release on bail. The circumstances have not changed since the decision of the earlier bail petition; hence, he prayed that the present petition be dismissed.

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

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It is undisputed that the petitioner had earlier filed a bail petition bearing Cr.MP(M) No.44 of 2024, which was dismissed by this Court on 26.04.2024. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605 that once a bail application has been dismissed, subsequent

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bail application can only be considered if there is a change of

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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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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

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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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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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11. 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 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

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completely different sphere unconnected with the facts of a case. Such power is based on the well-settled and judicially recognized principle that if successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders, and the litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Court's time and that judicial discipline requires that such matter must be placed before the same Judge, if he is available, for orders. The satisfaction of material change in circumstances needs to be adjudicated by the same Judge who had earlier decided the application. Therefore, the same Judge needs to adjudicate whether there is a change in circumstance as claimed by the applicant, which entitles him to file a subsequent bail application.”

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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 petitioner asserted that the prosecution had failed to complete the evidence within a reasonable time. A perusal of the status report shows that the petitioner was arrested on 18.11.2023 and the matter is now listed for the examination of witnesses at Sr. No. 4 to 6 on 03.05.2025. The copies of the order sheets show that the Court had summoned witnesses at Sr. Nos.1 to 3 and thereafter witnesses at Sr. Nos. 4 to 6 instead of summoning all the witnesses. The piecemeal summoning of the

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witnesses corroborates the submission of the petitioner that the trial is not likely to conclude soon.

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It was laid down in Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352 that the right of 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: (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

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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

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and the importance of 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 wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, 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 Summary-2021.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 any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes

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hostile by ordinary standards. Self-perception 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/ 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, 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 Assn. v. Union of India,

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(1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot be kept behind 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

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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) 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)

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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 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 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:

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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 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 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, 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

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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 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

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

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In the present case, the fact that the prosecution has

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failed to produce witnesses and the Court has also not summoned

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all the witnesses shows that the right of speedy trial of the petitioner is being violated and he is entitled to be released on bail on this ground.

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The petitioner was found in possession of 7.34 grams of heroin, which is slightly more than the small quantity. Keeping in view the quantity of the heroin recovered from the possession of the petitioner, his pre-trial detention is not justified.

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It was submitted that many FIRs are pending against the petitioner and he should not be released on bail. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Ayub Khan v. State of Rajasthan, 2024 SCC OnLine

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SC 3763: 2024: INSC:994 that the criminal antecedents may not be a reason to deny the bail to the accused in case of his long incarceration. It was observed:

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“10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents.”

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Since, in the present case, the petitioner has undergone long incarceration, therefore, his criminal antecedents are not sufÏcient to deny him 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 subject to his furnishing of bail bonds in the sum of ₹1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following 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 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 concerned Police Station and the Court.

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(iv) 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 clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move the Court for cancellation of the bail.

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The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.

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

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A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the ofÏcial website of this Court.

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7^th March, 2025 (Nikita)

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( Rakesh Kainthla) Judge

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Digitally signed by KARAN SINGH GULERIA Date: 2025.03.07 11:46:30 IST

Vijay Kumar v. State of Hp

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Vijay Kumar v. State of Hp

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