Himachal Pradesh High Court
Reserved On: 3.10.2024 vs State Of Himachal Pradesh on 21 October, 2024
2024:HHC:9964 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 2003 of 2024 Reserved on: 3.10.2024 Date of Decision: 21.10.2024.
Shoorveer Singh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Anubhav Chopra, Advocate. For the Respondent : Mr. Ajit Sharma, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 42 of 2023, dated 2.9.2023, registered with Police Station, Nerwa, District Shimla, H.P. for the commission of offences punishable under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). The petitioner has been implicated based on a statement 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2024:HHC:9964 made by co-accused Nasir Hussain. No recovery was effected from the petitioner. The petitioner has not committed any crime. The petitioner has aged parents. His two brothers are dependent upon him. The petitioner had earlier filed a bail petition bearing Cr.MP(M) No. 2570 of 2023, which was dismissed by the Court on 1.12.2023. The challan has been filed before the Court and the matter was listed for recording evidence on 9.9.2024. The question whether a drug containing codeine phosphate falls within the manufactured drugs under the ND&PS Act has been referred to a Larger Bench. The Hon'ble Division Bench has granted liberty to approach the Court during the pendency of the petition. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence the petition.
2. The petition is opposed by filing a status report, asserting that the police party was patrolling on 01.09.2023. The police stopped a vehicle bearing No. HR05S-1381 and searched it based on suspicion. The police recovered 11 bottles of Chlorpheniramine maleate and Rekscof, each containing 100 ml of the contraband. The police seized the bottles and arrested the driver Nasir Hussain, who revealed on enquiry that he had purchased the bottles from one Shoorveer Chauhan by paying 3 2024:HHC:9964 ₹3500/- through Google Pay. The police checked the bank account of Nasir Hussain and found that he had transferred the money to Shoorvir Chauhan (the present petitioner) between 01.04.2023 to 02.09.2023. The police checked the record of the bank account of Shoorvir Chauhan and verified that the money was transferred to his account. The call detail record also shows that Nasir Hussain and the petitioner were in touch with each other. The car bearing No. HR05S-1381 was found to be in the name of Vishi Sharma, who disclosed that he had sold it to Nasir Hussain. The petitioner was arrested and he produced one mobile phone which was seized by the police. The mobile number was found in the name of one Rakesh Thpliyal who disclosed that he had handed over the mobile to Shoorvir Chauhan (present petitioner). As per the report of the chemical analysis, Codeine Phosphate was found in Rukscof Syrup and the total weight of syrup is 1.330 kg. The challan was filed before the Court and the matter was listed for recording the prosecution evidence on 21.9.2024. The petitioner was involved in serious offences; therefore, it was prayed that the bail petition be dismissed.
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3. I have heard Mr. Anubhav Chopra, learned counsel for the petitioner and Mr. Ajit Sharma, learned Additional Advocate General, for the respondent/State.
4. Mr. Anubhav Chopra, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The matter has been referred to the Larger Bench and the Coordinate Bench of this Court had granted interim bail to the petitioner in Cr.MP(M) No. 830 of 2024, titled Chirag Vs. State of H.P., 2024:HHC:8534. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State submitted that the petitioner had filed a bail petition earlier which was dismissed by this Court. There is no change in circumstances. Therefore, 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.
7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Manik Madhukar Sarve v. Vitthal 5 2024:HHC:9964 Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed as under: -
"19. Courts while granting bail are required to consider relevant factors such as the nature of the accusation, the role ascribed to the accused concerned, possibilities/chances of tampering with the evidence and/or witnesses, antecedents, flight risk et al. Speaking through Hima Kohli, J., the present coram in Ajwar v. Waseem, 2024 SCC OnLine SC 974, apropos relevant parameters for granting bail, observed:
"26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. (Refer: Chaman Lal v. State of U.P. (2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav (supra) (2004) 7 SCC 528; Masroor v. State of Uttar Pradesh (2009) 14 SCC 286;
Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; Neeru Yadav v. State of Uttar Pradesh (2014) 16 SCC 508; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129; Mahipal v. Rajesh Kumar @ Polia (supra) (2020) 2 SCC 118.
27. It is equally well settled that bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the Superior Court. If there are serious allegations against the accused, even if he has not misused 6 2024:HHC:9964 the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a Superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order. In P v. State of Madhya Pradesh (supra) (2022) 15 SCR 211 decided by a three-judge bench of this Court [authored by one of us (Hima Kohli, J)] has spelt out the considerations that must be weighed with the Court for interfering in an order granting bail to an accused under Section 439(1)of the CrPC in the following words:
"24. As can be discerned from the above decisions, for cancelling bail once granted, the court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial [Dolat Ram v. State of Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To put it differently, in ordinary circumstances, this Court would be loathe to interfere with an order passed by the court below granting bail but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the appellate court." (emphasis supplied)
20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC 1085, speaking through one of us (Ahsanuddin Amanullah, J.), the Court, while setting aside an order of the Punjab and Haryana High Court granting (anticipatory) bail, discussed and reasoned:
"7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta 7 2024:HHC:9964 Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
8. In Mahipal v. Rajesh Kumar alias Polia, (2020) 2 SCC 118, this Court opined as under:
'16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary 8 2024:HHC:9964 exercise of discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. ...'
9. In Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 INSC 761, this Court, in view of Dolat Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of Telangana, (2018) 16 SCC 511, held as follows:
'13. It is also required to be borne in mind that when a prayer is made for the cancellation of the grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws support from the Judgment of this Court in Daulat Ram v. State of Haryana, (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and XXX v. State of Telangana (2018) 16 SCC 511.'
10. In XXX v. Union Territory of Andaman & Nicobar Islands, 2023 INSC 767, this Court noted that the principles in Prasanta Kumar Sarkar (supra) stood reiterated in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321.
11. The contours of anticipatory bail have been elaborately dealt with by 5-Judge Benches in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1. Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 is worthy of mention in this context, despite its partial overruling in Sushila Aggarwal (supra). We are cognizant that liberty is not to be interfered with easily. More so, when an order of pre-arrest bail already stands granted by the High Court.9
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12. Yet, much like bail, the grant of anticipatory bail is to be exercised with judicial discretion. The factors illustrated by this Court through its pronouncements are illustrative, and not exhaustive. Undoubtedly, the fate of each case turns on its own facts and merits."
(emphasis supplied)
21. In Ajwar (supra), this Court also examined the considerations for setting aside bail orders in terms below:
"28. The considerations that weigh with the appellate Court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined and detailed reasons relating to the merits of the case that may cause prejudice to the accused, ought to be avoided. Suffice it to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused.
29. In Jagjeet Singh (supra) (2022) 9 SCC 321, a three- judge bench of this Court, has observed that the power to grant bail under Section 439 Cr. P.C. is of wide amplitude and the High Court or a Sessions Court, as the case may be, is bestowed with considerable discretion while deciding an application for bail. But this discretion is not unfettered. The order passed must reflect the due application of the judicial mind following well-established principles of law. In the ordinary course, courts would be slow to interfere with the order where bail has been granted by the courts below. But if it is found that such an order is illegal or perverse or based upon utterly irrelevant material, the appellate Court 10 2024:HHC:9964 would be well within its power to set aside and cancel the bail. (Also refer: Puran v. Ram Bilas (2001) 6 SCC 338; Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC
584)" (emphasis supplied)
8. It is undisputed that the petitioner had filed a bail petition Cr.MP(M) No. 2570 of 2023, titled Shoorveer Singh Vs. State of H.P., which was dismissed by the Court on 1.12.2023. 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:
"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.11
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9. Similar is the judgment delivered in State of M.P. v.
Kajad, (2001) 7 SCC 673, wherein it was observed: -
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.
10. 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."
11. 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 12 2024:HHC:9964 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.
12. 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.
13. 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 situation or law which requires the earlier view to be interfered with or where the earlier 13 2024:HHC:9964 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."
14. 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.
15. The earlier bail petition was dismissed on the ground that the petitioner was prima facie found involved in the 14 2024:HHC:9964 commission of an offence punishable under Section 22 read with Section 29 of the ND&PS Act. This circumstance has not changed.
16. It was submitted that filing of a charge sheet amounts to a change in circumstance and the petitioner is entitled to bail. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406: (2017) 2 SCC (Cri) 542: 2017 SCC OnLine SC 295 that filing of charge sheet does not amount to change in circumstances. It was observed:
12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge sheet is filed it amounts to a change of circumstance. Needless to say, filing of the charge sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge sheet for the trial of the accused persons."
17. Thus, the petitioner cannot claim the bail on the ground that the charge sheet has been filed.
18. It was submitted that this Court has referred the question whether codeine phosphate falls within the definition of manufactured drugs to the Larger Bench and the Larger Bench has given liberty to the persons to approach the Court for a grant of 15 2024:HHC:9964 bail. This submission will not assist the petitioner. It was held in Union Territory of Ladakh v. Jammu & Kashmir National Conference, 2023 SCC OnLine SC 1140 that mere 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 16 2024:HHC:9964 us. Till such time as the decisions cited at the Bar are not modified or altered in 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 17 2024:HHC:9964 specifically directed by this Court, to 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)
19. 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.
20. The earliest judgment dealing with the question 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 wherein this Court after the exhaustive analysis of the various sections of the NDPS Act, concluded that codeine phosphate falls within the definition of a manufactured drug. Hence, pending 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.
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21. Once it is so held, that the rigours of Section 37 of the ND&PS Act will apply to the present case and the Court would be unable to grant bail to the petitioner without holding that the petitioner had complied with the requirements of Section 37 of ND&PS Act.
22. This Court had held earlier while deciding the bail petition of the petitioner that he was unable to satisfy the rigours of Section 37 of the ND&PS Act and he was not entitled to bail.
23. It was submitted that the petitioner is entitled to interim bail as per the orders passed by the Coordinate Bench. This submission cannot be accepted. 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 19 2024:HHC:9964 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)
24. Therefore, interim bail can be sought in cases where the Court has the power to grant regular bail and interim bail is granted to ensure that the petitioner is not sent to custody till the decision of the main case. In the present case, the rigours of Section 37 of the NDPS Act apply to the present case which have not been satisfied; hence, the petitioner is not entitled to regular bail and the interim bail as well.
25. No other point was urged.
26. In view of the above, the present petition fails and the same is dismissed.
27. 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 21st October, 2024 (Chander) Digitally signed by KARAN SINGH GULERIA Date: 2024.10.21 14:12:12 IST