Himachal Pradesh High Court
Sumit Kumar vs State Of H.P on 5 April, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 602 of 2023
Reserved on 31.3.2023
.
Decided on : 5.3.2023.
Sumit Kumar ...Petitioner.
Versus
State of H.P. ...Respondent
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No.
For the petitioner : Mr. Abhishek Barowalia, Advocate.
For the respondent : Mr. Varun Chandel and Mohinder
Zharaick Addl. A.Gs.
Satyen Vaidya, Judge:
Petitioner is accused in case FIR No. 349 of 2021, dated 17.12.2021, registered at Police Station Kullu, District Kullu, H.P., under Section 22 of Narcotic Drugs & Psychotropic Substances Act, (for short "the Act"),
2. Petitioner was apprehended by police with 20 LSD Papers in Village Kasol on 17.12.2021. The weight of the contraband was found to be 0.21 grams, which is commercial quantity. Petitioner was arrested on the same day i.e. 17.12.2021 and is in custody since then.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/04/2023 20:35:59 :::CIS -2-3. Petitioner has approached this Court third time for grant of bail in the same case. The first bail application of the .
petitioner being Cr.MP(M) No. 1259 of 2022, was rejected by this Court on 20.7.2022, by holding as under:-
"10. LSD is an extremely potent hallucinogen made from lysergic acid. It is used as the doses in microgram. LSD is commonly distributed for illicit use on paper which is absorbent as a blotter paper. The paper is also consumable and LSD is consumed by the user alongwith the paper. In such circumstances to hold that the weight of paper will not be included for determining the small or commercial quantity of the offending drug, will be against the clear import of Hira Singh (supra) as also the objects and reasons for which the act has been enacted
11. In light of the above discussion, the petitioner is accused of keeping in his conscious possession commercial quantity of LSD, which attracts the rigors of Section 37 of the NDPS Act.
12. That being so, the petitioner is not held entitled for bail in the instant case as this is not a case where the Court may be in a position to prima-facie hold the petitioner not guilty of offence alleged against him. Further, the very fact that petitioner, who originally belongs to State of Haryana, was found with the dangerous drug like LSD in remote area of Kullu District of Himachal Pradesh, speaks for itself. In these circumstance, it cannot be presumed that in case of release of petitioner on bail, he will not indulge in commission of crime during the period of his release on bail."::: Downloaded on - 05/04/2023 20:35:59 :::CIS -3-
4. Second bail application of the petitioner being Cr.MP(M) No. 2463 of 2022 was disposed of by this Court vide .
order dated 24.11.2022, in following terms:-
"After arguing for some time, learned counsel for the petitioner has submitted that his client will be satisfied, at this stage, in case learned trial Court is directed to decide the case expeditiously. He further submits that it will be in the interest of justice, in case, learned trial Court is directed to decide the matter within two months.
2. No doubt, the accused in every case has constitutional right of expeditious trial. However, the conclusion of trial depends upon number of factors. One of such factor is pendency of huge number of cases before each Court. In view of such situation, each Court has to prioritize the completion of trial on the basis of seniority of the case pending on its docket.
3. Keeping in view the entirety of the facts, suffice it to say that the learned trial Court shall make every endeavour to decide the trial as expeditiously as possible, keeping in view the seniority of the matters on its docket. The petition is disposed of accordingly."
5. Petitioner has again approached this Court by way of instant petition on the ground that prosecution has examined eight witnesses. PW-4, who was cited as an independent witness has not supported the case of prosecution.
According to the petitioner, there is a changed circumstance and petitioner is entitled to file the present bail application as also for grant of bail.
::: Downloaded on - 05/04/2023 20:35:59 :::CIS -4-6. On the other hand, the prayer of the petitioner has been opposed on the ground that he is accused of a serious .
offence. Rigors of Section 37 of the NDPS Act are applicable.
The prosecution evidence is being examined. Learned Special Judge is proceeding with sufficient expedition. There is no change of circumstance and the petitioner is not entitled to bail.
7. I have heard learned counsel for the parties and have also gone through the case file carefully.
8. As noticed above, the bail petition of the petitioner has already been rejected by this Court on merits by holding that in the facts of the case, the petitioner cannot be prima-
facie held to be not guilty of the offence and further it cannot be said that he will not indulge in similar offence, if released on bail.
9. It is trite law that successive bail application in the same case is permissible only in case of changed circumstance and such changed circumstance entitling petitioner for grant of bail. On 24.11.2022, petitioner himself had withdrawn his second bail application before this Court by seeking directions for expeditious disposal of the trial. Prior to that, his bail application was rejected on merits. After passing of the order ::: Downloaded on - 05/04/2023 20:35:59 :::CIS -5- dated 24.11.2022, eight witnesses have already been examined by the prosecution. Thus, it cannot be said that learned trial .
Court is not showing compliance to the orders passed by this Court. In this view of the matter, there is no changed circumstance that has taken place entitling the petitioner to grant bail. Merely, because one of the witnesses has not supported the case of prosecution, it cannot be inferred that the prosecution case has failed.
10. In light of above discussion, there is no merit in the petition and the same is accordingly dismissed.
11. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
(Satyen Vaidya)
5th April, 2023 Judge
(kck)
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