Himachal Pradesh High Court
Through Her Son vs Pallulabid Ahmad Arimutta And on 4 May, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 4th DAY OF MAY, 2022.
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL MISC. PETITION (MAIN) No. 675 OF 2022.
Between:-
SAINA DEVI AGED 42 YEARS WIFE OF SH.
YOG RAJ RANA RESIDENT OF WARD
NUMBER 03, TAMHOL POST OFFICE RAILA,
SUB TEHSIL SAINJ, DISTRICT KULLU,
HIMACHAL PRADESH.
PRESENTLY IN JUDICIAL CUSTODY AND
CONFINED DISTRICT JAIL KULLU,
DISTRICT KULLU, HIMACHAL PRADESH.
THROUGH HER SON:
LOVESH KUMAR, AGED 20 YEARS, SON OF
SH. YOG RAJ RANA, RESIDENT OF WARD
NUMBER 03, TAMHOL POST OFFICE RAILA,
SUB TEHSIL SAINJ, DISTRICT KULLU,
HIMACHAL PRADESH.
....PETITIONER.
(BY MR. BHUPINDER SINGH AHUJA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
RESPONDENT.
(BY MR. DESH RAJ THAKUR, ADDL.
ADVOCATE GENERAL WITH MR.
GAURAV SHARMA, DEPUTY ADVOCATE
GENERAL)
Reserved On: 28th April 2022.
Decided On: 4th May, 2022.
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________________________________________________________
.
This petition coming on for orders this day, the Court
passed the following: -
ORDER
By way of instant petition, petitioner has sought bail in case FIR No. 14 of 2021, dated 27.03.2021, registered at Police Station Sainj, District Kullu, Himachal Pradesh, under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act").
2. Petitioner was arrested on 01.06.2021 in the above noted case on disclosure made by co-accused Dabe Ram.
3. Petitioner had earlier also filed Cr.MP(M) No. 1493 of 2021 before this Court for grant of bail in above noted case.
However, the prayer made by petitioner was not granted.
4. In nutshell, the prosecution case is that on 27.03.2021, police party headed by HC Anupam Kumar No.13 had laid "Naka" at place Larji. At about 4.30 A.M, a vehicle bearing No. HP-24B-6994 (Tata Tigor) was stopped for checking. Another ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...3...
vehicle HP-24C-6968 (Pick-Up) followed and stopped behind the .
Tata Tigor car. Two person alighted from vehicle bearing No. HP-24B- 6994 and ran towards river. Vehicle HP-24C-6968 (Pick-
up) was occupied by its driver Vinod Kumar. On search of vehicle HP-24C-6968 "Charas" weighing 1 Kg and 555 grams was recovered. Vinod Kumar was arrested. As per his version, the recovered "Charas" belonged to Ram Krishan and Deep Ram @ Nittu, who were occupants of the car number HP-24B-6994.
5. Ram Krishan and Deep Ram alias Nittu were arrested on 30.03.2021. They disclosed that they had purchased the recovered contraband from Dabe Ram, who was also arrested on the same day. As per disclosure made by Dabe Ram, he had purchased the contraband from the bail petitioner on 26.03.2021.
The bail petitioner was arrayed as accused and was arrested on 01.06.2021.
6. The instant successive bail application has been filed by petitioner on the ground that there is a change in circumstance which makes petitioner entitled for bail. As per petitioner mere ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...4...
existence of CDR revealing exchange of phone calls inter-se .
accused persons cannot be a ground to deny bail to the petitioner.
In support of his case petitioner has placed reliance upon para-10 of the judgment passed by the Hon'ble Supreme Court in State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another, (2022)2 Scale 14, which reads as under:-
"10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, (2021)4 SCC 1,that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail.
The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, 2020, passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP(Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are accordingly, upheld ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...5...
and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective .
respondents, are dismissed as meritless."
7. I have heard Shri Bhupender Ahuja Advocate for the petitioner and Shri Desh Raj Thakur learned Additional Advocate General for the State and have also gone through the record.
8. This Court while rejecting the bail application i.e. Cr.MP(M) No. 1493 of 2021 on 24.09.2021, held as under:-
"17. Coming to the facts of the case no credible explanation has been given by petitioner regarding her repeated conversation with wife of Dabey Ram on 26th and 27th March, 2021. Nothing has been placed on record to suggest that there was some pending dispute between Dabey Ram and petitioner which could be the reason for her false implication. Otherwise also it is not understandable that in case of dispute between them, what was the occasion to have frequent phone calls between petitioner and Sarla Devi on 26.03.2021 and 27.03.2021.
18. It is also no one's case that Dabey Ram and his wife were not residing together or hand strained relations. In the given situation, it could be the modus operandi of Dabey Ram not to converse with petitioner from his mobile and for that reason might have used mobile phone of his wife. Merely because mobile phones of petitioner and Sarla Devi ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...6...
were not seized by police, will not help the cause of petitioner. The omission to seize mobile phones may not .
make a difference; in case it is otherwise proved that alleged mobile numbers of petitioner and Sarla Devi in fact belonged to them.
19. Thus, the implication of petitioner prima facie cannot be said to be without justification. That being so, this court is unable to return findings that there are reasonable grounds to believe that petitioner is not guilty of charged offence. In addition, the possibility of petitioner indulging in similar offence during bail can also not be ruled out. Therefore, Section 37 of NDPS Act comes into place and petitioner's right, if any, to be released on bail gets clogged.
20. The ingredients of Section 37 of NDPS Act are to be read conjunctively and absence of any single condition thereof disentitles a person from relief of bail."
9. Thus, the conclusion drawn by this Court as to the existence of prima facie case against petitioner was based upon the records of call details exchanged inter-se the bail petitioner and wife of co-accused Dabe Ram. However, taking into consideration the fact that the Hon'ble Supreme Court in Pallulabid Ahmad's case (supra), has observed that CDR details of some of the accused is an aspect that needs to be examined at ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...7...
the stage of trial, the contention of petitioner needs to be .
examined.
10. In Pallulabid Ahmad's case (supra), the Hon'ble Supreme Court upheld the orders passed by the High Court of Karnataka whereby the accused persons had been granted bail in case involving offences under NDPS Act, on bail. Existence of CDR details was not considered as sufficient material to deny bail to the accused therein.
11. It is trite law that successive regular bail application under Section 439 of the Cr.P.C. can be maintained only if there are changed circumstances and such changed circumstances warrant the grant of bail. Reference can be made to a decision of Hon'ble Supreme Court in State of Himachal Pradesh vs. Kajad (2001)7 SCC 673. In the absence of the aforesaid conditions, the order granting bail by allowing successive bail application amounts to review of its order by a criminal court which is not permissible under criminal law.
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12. In Lt. Col. Prasad Shrikant Purohit vs. State of .
Maharashtra, (2018) 11 SCC 458, the Hon'ble Apex Court has held as under:-
"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 duly to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duly to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."
13. Confronted with the aforesaid settled position of law, Shri Bhupinder Ahuja, learned counsel for the petitioner has vehemently contended that the observation made by Hon'ble Apex Court in Pallulabid Ahmad's case (supra) is the circumstance which should be considered a change from the fact situation as emerged at the time of rejection of earlier bail application of petitioner vide order dated 24.09.2021 passed by this Court in Cr.MP(M) No. 1493 of 2021. Learned counsel for petitioner, in support of his argument, has placed reliance on a judgment passed by the Hon'ble Apex Court in Kalyan Chandra ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...9...
Sarkar Etc. vs. Rajesh Ranjan @ Pappu Yadav and another, .
(2005) 2 SCC 42, in which it has been held as under:-
"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law.
Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law.
Under the criminal laws of this country, a person accused of offences which are non bailable is liable to detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law.
But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and / or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail in once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so.
19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...10...
regarding to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate bench must .
receive serious consideration at the hands of the court entertaining a bail application at a large stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been convassed earlier would not be permitted to be re-agitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate forum on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country."::: Downloaded on - 04/05/2022 20:06:33 :::CIS
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14. Hon'ble Apex Court, while dealing with .
maintainability of successive bail applications has recognised the change in the fact situation or in law or where the earlier findings have become obsolete as grounds for maintaining the successive bail application.
15. In Pallulabid Ahmad's case (supra), accused were ordered to be released on bail by Karnataka High Court in a case registered against them for commission of offences under NDPS Act involving commercial quantity. In that case also direct recovery was not affected from the accused person(s) so released on bail. In Special Leave Petition preferred against the order directing the release of accused person(s) on bail in that case, Hon'ble Supreme Court upheld the order of Karnataka High Court and one of the contention regarding availability of CDR details of some of accused person(s) was dispelled as a ground to deny the bail to them.
16. In the facts of instant case also the prosecution, for implicating the petitioner, relies upon firstly the confessional ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...12...
statement made by accused Dabe Ram and secondly the CDR .
details of calls exchanged between the petitioner and the wife of co-accused Dabe Ram. Taking into consideration, the evidence with respect to the availability of CDR details involving phone number of petitioner and mobile phone number of wife of co-
accused Dabe Ram, this Court had considered existence of prime facie case against petitioner and had rejected the bail application as not satisfying the conditions of Section 37 of NDPS Act.
17. Since, the existence of CDR details of accused person(s) has not been considered as a circumstance sufficient to hold prima facie case against the accused person(s), in Pallulabid Ahmad's case (supra), this Court is of the view that petitioner has made out a case for maintainability of his successive bail application as also for grant of bail in his favour.
18. Except the existence of CDRs and disclosure statement of co-accused no other material appears to have been collected against the petitioner. The disclosure made by co-
accused cannot be read against petitioner as per mandate of ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...13...
Hon'ble Supreme Court in Tofan Singh Vs State of Tamil Nadu .
(2021)4SCC1. Further, on the basis of aforesaid elucidation petitioner is also entitled for the benefit of bail.
19. No past history of petitioner regarding his involvement in similar or any other offence has been pointed out, therefore, there is no reason to presume that petitioner, if enlarged on bail, is likely to commit similar offence.
20. It is not the case of the respondent that in case of enlargement of petitioner on bail, the trial before learned Special Judge shall be adversely affected. Petitioner is permanent resident of Ward No.3, Tamhol Post Office, Raila, Sub Tehsil Sainj, District Kullu, H.P. No apprehension has been shown regarding the possibility of petitioner fleeing from the course of justice. It is also not the case of the respondent that petitioner has potential to tamper with the prosecution evidence.
21. In the light of above discussion and in the peculiar facts and circumstances of the case, the instant petition is allowed and petitioner is ordered to be released on bail in case FIR No. 14 ::: Downloaded on - 04/05/2022 20:06:33 :::CIS ...14...
of 2021 dated 27.03.2021, registered at Police Station Sainj, District .
Kullu, Himachal Pradesh under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, on her furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court, however, subject to following conditions:-
(i) That the petitioner shall regularly attend the hearings of the case before learned Special Judge and shall not delay the proceedings thereof.
(ii) That the petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) That the petitioner shall not leave the country without the express permission of the trial Court;
22. However, it is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only.
4th May, 2022 (Satyen Vaidya)
(jai/gr) Judge
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