Himachal Pradesh High Court
Reserved On: 18.9.2024 vs State Of Himachal Pradesh on 1 October, 2024
2024:HHC:9419 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 2015 of 2024 .
Reserved on: 18.9.2024 Date of Decision: 1.10.2024.
Nasir Hussain ...Petitioner
Versus
State of Himachal Pradesh
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Ashwani Sharma, Advocate. For the Respondent : Mr. Ajit Sharma, Deputy Advocate General, with HC Mohinder, No. 132, Police Station Nerwa, District Shimla, H.P. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') vide FIR No. 42 of 2023, dated 2.9.2023, registered at Police Station Nerwa, District Shimla, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 01/10/2024 21:20:35 :::CIS 22024:HHC:9419 H.P. As per the prosecution, the petitioner is in custody since 2.9.2023. Eleven bottles of Rukscof Syrup containing .
Chlorpheniramine Maleate and Codeine Phosphate Syrup were recovered by the police. Incarceration beyond one year would amount to conviction. The contraband is a solution of sugar and contains codeine phosphate in fractional proportion. Therefore, the rigours of Section 37 of the ND&PS Act do not apply to the present case. The petitioner has no criminal history. The petitioner had filed two bail petitions one of which was withdrawn and the second was dismissed. Four months have elapsed since the passing of the previous order. Few of the prosecution witnesses have been examined. There is a material change in the circumstance. The petitioner would abide by the terms and conditions which the Court may impose. Hence the petition.
2. The police filed a status report asserting that the police party intercepted a vehicle bearing No. HR-5S-1381 on 01.09.2023 at about 11:15 p.m. It was searched based on suspicion. The police recovered 11 bottles of Rukscof Syrup containing Chlorpheniramine maleate & Codeine Phosphate syrup. The police seized the bottles and arrested the petitioner, ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 3 2024:HHC:9419 who was driving the vehicle. He revealed on enquiry that he had purchased 11 bottles from Suri Chauhan. The account of the .
accused was checked and it was found that money was transferred on eleven occasions to Surveer Singh @ Suri Chauhan. The registered owner of the vehicle revealed that he had sold the vehicle to the petitioner. The police arrested Surveer Singh @ Suri Chauhan. The total weight of contraband is 1.330 kg, which is a commercial quantity. The matter was listed for prosecution evidence on 21.9.2024. The quantity of the codeine phosphate was found to be 1.330 Kg., which is a commercial quantity. Hence, it was prayed that the present petition be dismissed.
3. I have heard Mr. Ashwani Sharma, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State.
4. Mr Ashwani Sharma, learned counsel for the petitioner submitted that the quantity of Codeine Phosphate recovered from the possession of the petitioner is less than commercial quantity and the police erred in considering the entire cough syrup as the Codeine Phosphate. A division bench ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 4 2024:HHC:9419 of this Court is seized of the question whether Codeine Phosphate falls within the definition of manufactured drug or .
not. The constitutional courts are not bound by the rigours of Section 37 of the NDPS Act. He prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgment of Rabi Prakash Vs. State of Odisha, Special Leave to Appeal (Crl.) No. 4169 of 2023 and Vimal Rajput Vs. State of U.P., 2024:AHC; LKO-42533 in support of his submission.
5. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State submitted that the entire quantity of the syrup is to be treated while determining its nature under the NDPS Act. The petitioner was found in possession of 1.330 kg of Rukscop Syrup containing Codeine Phosphate, which is a commercial quantity; therefore, rigours of Section 37 of the NDPS Act apply to the present case. There are no reasons to believe that the petitioner had not committed the offence and will not commit the offence in case of release on bail. Hence, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
::: Downloaded on - 01/10/2024 21:20:35 :::CIS 52024:HHC:9419
7. It is undisputed that the petitioner had filed a bail petition bearing Cr.MP(M) No. 319 of 2024, titled Nasir Hussain .
Vs. State of H.P., decided on 30.4.2024, which was dismissed by this Court. 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: r "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.
8. Similar is the judgment delivered in State of M.P. v.
Kajad, (2001) 7 SCC 673, wherein it was observed: -
::: Downloaded on - 01/10/2024 21:20:35 :::CIS 62024:HHC:9419
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 .
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.
9. Similarly, it was held in Kalyan Chandra Sarkar Vs. 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:
"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."
10. A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380, wherein it was observed:
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 ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 7 2024:HHC:9419 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.
11. This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458, wherein it was observed:
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.
12. It was held in Ajay Rajaram Hinge v. State of 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:
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 ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 8 2024:HHC:9419 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 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."
13. 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.
14. The earlier bail petition was declined on the ground that the petitioner was found in possession of the commercial ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 9 2024:HHC:9419 quantity of codeine phosphate, therefore, rigorous of Section 37 of the ND&PS Act apply to the present case and the petitioner .
was unable to satisfy the requirement laid down in Section 37 of ND&PS Act. These circumstances have not changed.
15. It was submitted that the petitioner is in custody for more than one year and there is a delay in the trial. It was observed in Jaibunisha v. Meharban, (2022) 5 SCC 465: 2022 SCC OnLine SC 58 that the period of custody has to be weighed with criminal antecedent. It was observed at page 478: -
"21.6. Another factor which should guide the court's decision in deciding a bail application is the period of custody. However, as noted in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446:
(2012) 3 SCC (Cri) 1172], the period of custody has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents of the accused, if any. Further, the circumstances which may justify the grant of bail are to be considered in the larger context of the societal concern involved in releasing an accused, in juxtaposition to individual liberty of the accused seeking bail."
16. Further, the petitioner has not filed copies of order sheets showing that there is a delay on the part of the prosecution and not on the part of the accused. Therefore, no advantage can be derived from the delay.
::: Downloaded on - 01/10/2024 21:20:35 :::CIS 102024:HHC:9419
17. Reliance was also placed upon the judgment of the Hon'ble Supreme Court in Ravi Prakash Vs. State of Orissa, SLP, .
Crl. No. 4169 of 2023, decided on 13.7.2023, a perusal of which shows that the petitioner was in custody for more than three and half years. One out of nineteen witnesses had been examined. Hence, the Hon'ble Supreme Court granted the bail to the accused in that case.
18. In the present case, the petitioner is in custody for about one year. As per the applicant, few of the witnesses have been examined, therefore, it cannot be said that the trial is not progressing and there is any unreasonable delay in the progress of the trial.
19. It was submitted that this Court has referred to a Division Bench to determine a question whether the Codeine Phosphate falls within the definition of manufactured drugs under Section 22 of the ND&PS Act, which reference is still pending. Therefore, the petitioner is entitled to interim bail.
This submission cannot be accepted.
20. It was held in Union Territory of Ladakh v. Jammu & Kashmir National Conference, 2023 SCC OnLine SC 1140 that mere ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 11 2024:HHC:9419 reference to a larger bench does not unsettle the declared law.
The High Courts and the Tribunals should not stay their hands .
merely because a reference was made to a larger bench. It was observed:
"32. ....[I]t is settled that mere reference to a larger Bench does not unsettle declared law. In Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608, a 2-judge Bench said:
"15. Even if what is contended by the learned counsel is correct, it is not for us to go into the said question at this stage; herein cross-examination of the witnesses had taken place. The Court had taken into consideration the materials available to it for the purpose of arriving at a satisfaction that a case for exercise of jurisdiction under Section 319 of the Code was made out. Only because of the correctness of a portion of the judgment in Mohd. Shafi [(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR 1023 : (2007) 5 Scale 611] has been doubted by another Bench, the same would not mean that we should wait for the decision of the larger Bench, particularly when the same instead of assisting the appellants runs counter to their contention." (emphasis supplied)
33. In Ashok Sadarangani v. Union of India, (2012) 11 SCC 321, another 2-Judge Bench indicated: "29. As was indicated in the Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608: (2010) 1 SCC (Cri) 1135], the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case [(2010) 15 SCC 118] need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 12 2024:HHC:9419 any way, they continue to hold the field." (emphasis supplied)
34. On the other hand, when it was thought proper that .
other Benches of this Court, the High Courts and the Courts/Tribunals below stay their hands, the same was indicated in as many words, as was the case in State of Haryana v. G D Goenka Tourism Corporation Limited, (2018) 3 SCC 585:
"9. Taking all this into consideration, we are of the opinion that it would be appropriate if in the interim and pending a final decision on making a reference (if at all) to a larger Bench, the High Courts be requested not to deal with any cases relating to the interpretation of or concerning Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Secretary-General will urgently communicate this order to the Registrar General of every High Court so that our request is complied with.
10. Insofar as the cases pending in this Court are concerned, we request the Benches concerned dealing with similar matters to defer the hearing until a decision is rendered one way or the other on the issue whether the matter should be referred to a larger Bench or not. Apart from anything else, deferring the consideration would avoid inconvenience to the litigating parties, whether it is the State or individuals." (emphasis supplied)
35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open unless specifically directed by this Court, to ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 13 2024:HHC:9419 await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with .
conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC
680. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it." (Emphasis supplied)
21. Thus, mere a reference to the Larger Bench will not entitle the petitioner to bail. The court has to be guided by the earliest judgment holding the field.
22. This Court considered the question of whether codeine phosphate falls within the definition of a manufactured drug or not in Praduman Justa Vs. State of H.P. (2016) Cr.LJ 3639 and after the exhaustive analysis of the various sections of the NDPS Act, concluded that codeine phosphate falls within the definition of manufactured drug. Hence, pending a decision by the Larger Bench, this Court has to follow the judgment of Praduman Justa (supra) and hold that the codeine phosphate falls within the definition of a manufactured drug.
23. Once it is so held, the rigours of Section 37 of ND&PS Act will apply to the present case and the Court would be unable ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 14 2024:HHC:9419 to grant bail to the petitioner without satisfying that the petitioner had complied with the requirements of Section 37 of .
ND&PS Act.
24. It was laid down by the Hon'ble Supreme Court in Mukesh Kishanpuria versus State of West Bengal, 2010 (15) SCC 154, that the power to grant regular bail includes the power to grant interim bail pending final disposal of the regular bail petition.
Such a power is inherent in the power to grant bail. It was observed:
"3. However, the petitioner may apply for regular bail before the Court concerned and along with the said application, he may file an application for interim bail pending disposal of the regular bail application. We have made it clear on a number of occasions that the power to grant regular bail includes the power to grant interim bail pending the final disposal of the regular bail application.
This power is inherent in the power to grant bail, particularly in view of Article 21 of the Constitution of India. We are of the opinion that in view of Article 21 of the Constitution, a person should not be compelled to go to jail if he can establish prima facie that in the facts of the case he is innocent." (Emphasis supplied)
25. Therefore, interim bail can be sought in cases, where the Court has the power to grant the regular bail and interim bail is granted to ensure that till the decision of the main case, the petitioner is not sent to custody. In the present case, the rigours ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 15 2024:HHC:9419 of Section 37 of the NDPS Act apply to the present case and it was held in the previous petition that the petitioner was unable to .
satisfy the rigours; hence, he is not entitled to bail.
26. It was submitted that the rigours of Section 37 of the NDPS Act do not apply to the Constitutional Courts. This submission is only stated to be rejected. Hon'ble Supreme Court set aside the order of the High Court which had granted bail without considering section 37 of NDPS Act in Dharmendra v.
State of M.P., 2006 SCC OnLine MP 26 : (2006) 1 MP LJ 436 : (2006) 4 CCR 350: 2006 Cri LR (MP) 216 and observed:
"2. Arising out of the same FIR, Criminal Appeal No 46 of 2022 was allowed by an order dated 7 January 2022 passed by this Court [Narcotics Control Bureau v. Ajeet Kumar Yadav]. The order of the Court is reproduced below for convenience of reference:
"Leave granted.
We have heard the learned counsel for the parties.
The impugned order is unsustainable as does not take into consideration the statutory mandate of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). In view of the aforesaid position, the impugned order is set aside and the respondent is directed to surrender within a period of seven days. If the respondent does not surrender within the aforesaid time, the investigation officer would take immediate and necessary steps to detain and arrest the respondent.::: Downloaded on - 01/10/2024 21:20:35 :::CIS 16
2024:HHC:9419 We also restore B.A. No. 3081 of 2021 to the file of the High Court with a direction to decide the bail application afresh in accordance with law and without being influenced by the impugned order. We clarify .
that we have not expressed any opinion on the merits. It will be open to the respondent to move an application for early listing of bail application after the respondent surrenders.
The appeal is partly allowed, setting aside the impugned order on the aforesaid terms with the direction of a fresh decision.
All pending applications stand disposed of."
3. The Single Judge of the High Court of Jharkhand has allowed the applications for bail without even adverting to the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
4. The Office Report indicates that the respondents have been served.
5. Following the directions which were issued on 7 January 2022 in Criminal Appeal No. 46 of 2022, we pass the following order:
(i) The impugned orders of the High Court of Jharkhand dated 26 July 2021 in Bail Application No 6238 of 2021 and 23 June 2021 in Bail Application No 4881 of 2021 are set aside;
(ii) The respondents are directed to surrender within a period of seven days and, if they fail to do so within the stipulated period, the Investigating Officer would take immediate and necessary steps to detain and arrest the respondents;
(iii) Bail Application Nos 6238 of 2021 and 4881 of 2021 are restored to the file of the High Court with a direction to decide the applications afresh without being influenced by the impugned order; and
(iv) This Court has not expressed any opinion on the merits of the bail applications and it will be ::: Downloaded on - 01/10/2024 21:20:35 :::CIS 17 2024:HHC:9419 open to the respondents to move an application for early listing after they surrender.
6. The appeals are allowed in the above terms."
.
27. Therefore, it is impermissible to say that the provision of Section 37 of the NDPS Act does not apply to the Constitutional Courts.
28. In view of the above, the petitioner is not entitled to bail. Hence, the present petition fails and the same is dismissed.
29. 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.
(Rakesh Kainthla) Judge 1st October, 2024 (Chander) ::: Downloaded on - 01/10/2024 21:20:35 :::CIS