Point of Law : NDPS Case - Rejection of Bail - Petitioner was accused of selling huge Quantity of contraband despite the fact that another case under the NDPS Act was pending against the petitioner.

ORDER :

Petitioner is accused in case registered vide FIR No.204 of 2019 dated 29.09.2019 Registered at Police Station, Bhuntar District Kullu, Himachal Pradesh under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Petitioner was arrested in the above noted case on 06.10.2019 and is in custody since then.

2. Petitioner is seeking his release on bail in above noted case under Section 439 Cr.P.C. on the premise that his implication is false. Since, he has been arrayed as an accused with the aid of Section 29 of the Narcotic Drugs and Psychotropic Substances (for short NDPS) Act, rigors of Section 37 would not apply especially when nothing was recovered from the possession of petitioner. The alleged disclosure by co-accused cannot be used against him. Conspiracy cannot be inferred from alleged telephone calls. There is no legal evidence against the petitioner. The mobile number alleged to be used by petitioner, in fact, did not belong to him.

3. It has further been contended on behalf of the petitioner that he is permanent resident of Village Chhaky, Post office, Nagar Tehsil Sadar, District Kullu, Himachal Pradesh and has roots in the society. There is no likelihood of petitioner absconding from course of justice. He undertakes to abide by all the conditions as may be imposed. The petitioner has also relied upon statement of his brother Sh. Dharam Chand recorded in the case as PW-1 by learned Special Judge on 01.09.2021.

4. On notice, respondent has placed on record status report. As per case of respondent, a huge quantity of 3 Kg. 382 grams of cannabis (Charas) was seized from personal search of one Joseph Shobal during routine checking in a bus at about 11.20 P.M. on 29.09.2019 at Bajaura District, Mandi, Himachal Pradesh. Further investigation revealed that Joseph Shobal was resident of Kerala and had purchased the seized contraband for Rs.4,80,000/- from bail petitioner through one Mohsin. Contention of respondent is that there were regular telephonic conversations between petitioner Mohsin and Joseph Shobal between 26.09.2019 to 28.09.2019, which sufficiently revealed implication of petitioner in the crime.

5. On completion of investigation, challan was presented and trial is pending before learned Special Judge, Kullu.

6. The first bail application of petitioner before this Court under Section 439 Cr.P.C. was Cr.MP(M) No. 926 of 2020 which was withdrawn by him on 02.07.2020 with liberty to file afresh at appropriate stage.

7. Petitioner preferred another application for grant of bail under Section 439 Cr.P.C. being Cr.MP(M) No.1531 of 2021, which was rejected by this Court on 24.09.2021.

8. The instant petition is third successive application on the ground that there is a change in circumstance. It is contended on behalf of petitioner that the implication of petitioner is only on the basis of confessional statements of co-accused as well as some CDR wrongly attributed to him. Sh. Bhupinder Ahuja, learned counsel for the petitioner has submitted that this Court in the case of Saina Devi vs. State of Himachal Pradesh, Cr.MP(M) No. 675 of 2022, decided on 04.05.2022 has allowed the successive bail petition. According to learned counsel for the petitioner, the present case is also covered by the case of Saina Devi (supra).

9. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

10. It is trite law that successive regular bail application under Section 439 of 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.

11. In Lt. Col. Prasad Shrikant Pu