Sushil Kukreja, J
1. Since both these petitions arise out of FIR No. 167/2022, dated 30.10.2022, they have been heard together and are being disposed of by this
common order.
2. By way of instant petitions, filed under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short “BNSSâ€), the petitioners are
seeking bail in case FIR No. 167/2022, dated 30.10.2022, registered at Police Station Bhawarna, District Kangra, H.P., under Sections 20 & 29 of the
Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Actâ€).
3. The prosecution story, in brief, is that on 29. 10.2022, at about 9:15 P.M., while police party was on routine patrolling duty at
Drang, they received a secret information that one white colour Kiger car, without number plate, was parked in the pine forest on a link road adjacent
to National Highway Praour, in which, one woman namely Bimla Devi and one man namely Pawan Kumar were sitting, who were in the process of
selling charas/cannabis and if search of the said vehicle was conducted, huge quantity of charas/cannabis could be recovered. Accordingly, police
party went in search of the aforesaid persons and at about 9:40 P.M., when they reached the spot, they saw two persons, one man and one woman,
sitting in the vehicle. On asking, the man sitting on the driver seat disclosed his name as Pawan Kumar and woman sitting on the co-driver seat
disclosed her name as Bimla Devi (petitioners herein). Both the accused persons were asked as to what they were doing in the jungle, however, they
could not give any satisfactory answer. On suspicion, the police associated Vikram and Bhupinder Singh as independent witnesses in the proceedings,
in whose presence, the vehicle in question was checked and underneath the co-driver seat, one yellow coloured carry bag was recovered. On opening
of the said bag, four packets wrapped with brown tape were found. In the said packets, dark brown coloured hard substance in the shape of sticks
was recovered, which was found to be charas/cannabis. On weighment, the recovered contraband was found to be 2 Kg and 09 grams. During
further checking of the vehicle, underneath the footmat of the driver seat, one yellow coloured bag was found. On opening of the said bag, currency
notes of Rs. 80,000/-, i.e. 158 notes of the denomination of Rs. 500/- and five notes of denomination of Rs. 200/- were recovered. Thereafter, the
police completed all the codal formalities and consequently, FIR as detailed hereinabove was registered against the accused persons and they were
arrested.
4. Learned counsel for the petitioners contended that the petitioners are innocent and have been falsely implicated in this case. He further contended
that the petitioners are in judicial custody since 30.10.2022 and the trial is not going to be completed in near future, therefore, the petitioners deserve to
be released on bail, as no fruitful purpose would be served by keeping them behind the bars for an unlimited period. He also contended that there is
inordinate delay in conclusion of trial, which infringes upon the right of speedy trial of the petitioners, as such, they are entitled to be released on bail on
the ground that their right of speedy trial has been violated.
5. Per contra, the learned Additional Advocate General has opposed the bail applications on the ground that keeping in view the gravity of the offence
alleged to have been committed by the petitioners and the quantity of the recovered contraband, i.e. commercial quantity, they are not entitled to be
enlarged on bail. He further contended that the present bail applications filed by the petitioners are the successive petitions, which are liable to be
dismissed as there is no change in circumstances after the dismissal of their earlier bail applications.
6. Pertinently, the present is the successive bail application filed by the petitioners. Earlier, the petitioner-Pawan Kumar had preferred two bail
applications, i.e., Cr.MP(M) No.475 of 2023 and Cr.MP(M) No. 2342 of 2023, before this Court, seeking regular bail, which were dismissed vide
order dated 13.04.2023 and 28.11.2023, respectively, as this Court was of the opinion that quantity of the charas/cannabis recovered from the
petitioner was 2.09 kgs, which is a commercial quantity and he has failed to satisfy the conditions, as provided under Section 37 of the NPDS Act.
The bail petition of Bimla Devi (petitioner herein), i.e., Cr.MP No. 1611 of 2024, was dismissed as withdrawn, vide order dated 24.08.2024.
7. It is a well settled principle of law that when the successive application comes before the Court, the Court would be very conscious while
considering the same. As held by the Hon’ble Apex Court in State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292,
that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for
getting bail in successive bail application. The Court should not pass the order of releasing him on bail in successive bail application merely establishing
some cosmetic change between time gap of two applications. There should be drastic change during the period between two applications, which
would entitle the accused for bail.
8. In State of Tamilnadu vs. S.A.Raja (2005) 8 SCC 380, Hon'ble Supreme Court has categorically held that when there are no changed
circumstances, the successive bail application is nothing but review of the earlier application which cannot be maintainable. The relevant portion of the
aforesaid judgment reads as under:-
“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 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 the bail applications without there being any change of circumstances would lead to bad precedents.â€
9. In State of M.P vs. Kajad, (2001) 7 SCC 673, Hon'ble Supreme Court held that:
“8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. 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 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 & Anr. and various other judgmentsâ€.
10. In the case of Kalyan Chandra Sarkar, vs Rajesh Ranjan, (2004) 7 SCC 528, Hon'ble Supreme Court held as follows:
“20. Before concluding, we must note 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 what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications……….
11. In Virupakshappa Gouda & another vs. State of Karnataka and another (2017) 5 Supreme Court Cases 406, it is held that:
“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
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 chargesheet establishes that after due investigation the investigating agency, having found materials, has placed the charge- sheet for trial of the
accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special
leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal
Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not
been taken note of by the learned trial Judge……….â€
12. Thus, it is the settled position of law that successive bail applications are permissible under the changed circumstances but the change of
circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or of no
consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection
order which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons
and grounds on which the earlier bail application was rejected and what are the fresh grounds which persuade it warranting the evaluation and
consideration of the bail application afresh and to take a view different from the one taken in the earlier application. There must be change in the fact
situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.
13. This Court, confronted Mr. Vijender Katoch, Advocate, learned counsel for the petitioners, to point out the change in circumstances after the
dismissal of the earlier bail application(s). The first contention of the learned counsel for the petitioners is that the independent witnesses, i.e., PW-9
Vikram and PW-10 Bhupinder Singh have turned hostile and they have not supported the case of the prosecution. However, this contention of the
learned counsel for the petitioners is devoid of any force as the evidence of a hostile witness cannot be discarded as a whole, and relevant parts
thereof which are admissible in law, can be used by the prosecution or the defence as the case may be. The Hon’ble Supreme Court in State vs.
Sanjeev Nanda reported as (2012) 8 SCC 450 held as follows:-
99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we
see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which
undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby,
eroding people‟s faith in the system.
100. This court in State of U.P. v. Ramesh Mishra and Anr. [AIR 1996 SC 2766] held that it is equally settled law that the evidence of hostile witness could not
be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr. [AIR 2004 SC 524], this Court
held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the
witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it.
This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
14. Therefore, the effect of PWs 9 and 10, being turned hostile, will be seen by the learned Trial Court at the time of the final disposal of the trial as
prosecution has examined other witnesses also, who have supported its case. Given the background of the case and the nature of the offence
committed, this Court is not inclined to accept the plea of counsel for the petitioners that this is a factor that should persuade the Court to release the
petitioners on bail at this stage.
15. The learned counsel for the petitioners next contended that that there is an inordinate delay in conclusion of trial, which infringes upon the right of
speedy trial of the petitioners as they are in custody since 30.10.2022. However in the facts and circumstances of the present case, this contention of
learned counsel for the petitioners cannot be accepted, as the trial has already commenced and out of total 18 witnesses cited by the prosecution, 12
witnesses have already been examined and now the case is listed for recording the statements of remaining prosecution witnesses on 13th and 15th
January, 2025, therefore, there is every likelihood of the completion of trial in near future. There is no gainsaying the fact that the right to life and
personal liberty is a fundamental right enshrined in the Constitution of India. However, it can be curtailed on occasions where the liberty of an
individual would conflict with interests of society at large. There is no inexorable formula in matters with respect to grant or refusal of bail. The facts
and circumstances of each case govern exercise of judicial discretion in granting or rejecting bail. In the case on hand, the learned counsel for the
petitioners, has failed to point out any substantial change in the circumstances after the dismissal of the earlier bail applications, which would entitle the
petitioners for release on bail
16. Hence, in view of the facts and circumstances of the present case, this Court is of the view that after the dismissal of the earlier bail applications,
there is no substantial change in the circumstances which would entitle the petitioners for releasing them on bail. Therefore, in absence of any
changed circumstances, the present successive applications for bail cannot be entertained. Hence, for the reasons mentioned above, the bail
applications filed by the petitioners are dismissed.
17. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court
will not be influenced by any observations made therein. However, as the petitioners are behind the bars since 30.10.2022, the learned trial Court is
expected to conclude the trial as expeditiously as possible.
