Himachal Pradesh High Court
Mangat Muhammad vs State Of Himachal Pradesh on 6 December, 2024
( 2024:HHC:13654 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) Nos. 2272 and 2213 of
2024
Reserved on: 29.11.2024
Date of Decision: 06.12.2024.
1. Cr. MP (M) No. 2272 of 2024
Mangat Muhammad …Petitioner
Versus
State of Himachal Pradesh
…Respondent
2. Cr.MP(M) No. 2213 of 2024
Hardik Chawda
…Petitioner
Versus
State of Himachal Pradesh
…Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner(s): Mr. Manoj Pathak, Advocate in
Cr.MP(M) No. 2272 of 2024
Mr. Rakesh Kumar Chaudhary &
Mr. Panku Chaudhary, Advocates,
in Cr.MP(M) No. 2213 of 2024
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2 ( 2024:HHC:13654 )
For the Respondent: Mr. Lokender Kutlehria, Additional
Advocate General in both the
petition.
Rakesh Kainthla, Judge
The petitioners have filed the present petitions for
seeking regular bail. It has been asserted that FIR No. 44 of 2023,
dated 10.02.2023, was registered against the petitioners for the
commission of offences punishable under Sections 20 and 29 of
Narcotic Drugs and Psychotropic Substances Act, 1985 (in short
‘NDPS Act’) at Police Station Sadar, District Mandi, H.P.
2. As per the prosecution, the police had laid a nakka
near Vrindravani Kullu Mandi Four-lane. They intercepted a
vehicle bearing registration No. PB-01B-9156. They searched the
vehicle and recovered 4.234 kgs of charas. The allegations so
levelled against the petitioners are false. There is no evidence
against the petitioners to connect them with the commission of
crime. The petitioners are permanent residents of the addresses
mentioned by them in the petitions. The charge sheet has been
filed before the learned Court and they would abide by all the
terms and conditions, which the Court may impose. Hence, the
petitions.
3 ( 2024:HHC:13654 )
2. The petitions are opposed by filing a status report. It
was asserted that the police had stopped the vehicle on
10.02.2023 at about 12:55 p.m. Petitioner, Mangat Muhammed,
was driving the vehicle and petitioner, Hardik Chawda, was
sitting as a passenger. Hardik Chawda tried to give a bag to the
driver, Mangat Muhammed, after picking it up from the rear
seat, and the driver tried to push the bag towards Hardik
Chawda. The police became suspicious and searched the vehicle
in the presence of independent witnesses. A bag containing 4.234
kgs Charas was found in the vehicle. The police seized the
vehicle and Charas and arrested the petitioners. Hardik Chawda
disclosed that he had visited Kasol on 02.02.2023 and called
Mangat Muhammad on 08.02.2023. They had purchased the
Charas from an unknown person for ₹2,00,000/-. However,
they could not identify him because he was wearing a mask. The
Charas was sent to SFSL Junga, and it contained 37.46% w/w
Resin as per the report of SFSL Junga. The call details record of
the petitioner and driver were obtained, and it was found that
they were in contact with each other from 08.02.2023 till
10.02.2023. The mobile phone was registered in the name of the
Hardik Chawda’s mother. It was found from the call detail record
4 ( 2024:HHC:13654 )
of petitioner – Mangat Muhammad that he had visited Kullu
from Chandigarh three times between 05.02.2023 and
10.02.2023. His location was found to be at Ajijpur Toll Plaza,
Punjab, where he had paid the toll tax of the vehicle bearing
registration no. PB01B-9156 at 3:34 p.m. The petitioners were
found in the vehicle from which the recovery of Charas was
effected. The owner issued a certificate stating that Mangat
Muhammad was the driver. Petitioner Hardik Chawda was in
touch with the owner and had called him 212 times during the
last year. Petitioners-Mangat Muhammad and Hardik Chawda,
were in touch with each other w.e.f. 08.02.2023 till 10.02.2023 for
about seven times. Gurtej Singh made a wrong statement to the
police that the driver of the vehicle was some other person and
petitioner- Hardik Chawla was a passenger. Seven witnesses
have been examined, and the matter was listed on 04.11.2024 for
recording the remaining evidence. Hence, the status report.
3. I have heard Mr Manoj Pathak, learned counsel for
petitioner- Mangat Muhammad, Mr Rakesh Kumar Chaudhary,
learned counsel for petitioner- Hardik Chawda and Mr Lokender
Kutlehria, learned Additional Advocate General for the
respondent/State.
5 ( 2024:HHC:13654 )
4. Mr. Manoj Pathak, learned counsel for petitioner-
Mangat Muhammad, submitted that the petitioner is innocent
and he was falsely implicated in the present FIR. The petitioner
was merely a driver of the vehicle in which Hardik Chawda was
travelling; it is highly doubtful that the petitioner would keep his
backpack with the passenger. The whole case of the petitioner is
highly suspicious; therefore, he prayed that the present petition
be allowed and the petitioner be released on bail.
5. Mr Rakesh Chaudhary, learned counsel for
petitioner- Hardik Chawda, submitted that the petitioner was
merely a passenger and, as per the prosecution, the backpack
belonged to petitioner- Mangat Muhammad. Petitioner –
Hardik Chawda, was wrongly arrested, therefore, he prayed the
present petition be allowed and the petitioner be released on bail.
5. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that the petitioners
were found in possession of commercial quantity of charas and
rigours of Section 37 of ND&PS Act apply to the present case.
There is nothing to satisfy the twin conditions laid down in
Section 37 of ND&PS Act; therefore, he prayed that the present
petitions be dismissed.
6 ( 2024:HHC:13654 )
6. I have given considerable thought to the submissions
made at the bar and have gone through the record carefully.
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal
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
7 ( 2024:HHC:13654 )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
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
8 ( 2024:HHC:13654 )
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
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.’
9 ( 2024:HHC:13654 )
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 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
10 ( 2024:HHC:13654 )
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.
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
11 ( 2024:HHC:13654 )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 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. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. It is undisputed that petitioner- Hardik Chawda, had
earlier filed a petition bearing Cr.MP(M) No. 1176 of 2023, which
was dismissed by this Court on 06.10.2023 after holding that
there is sufficient material on record to connect him with the
commission of crime. He was found in the vehicle from which
the recovery was effected. He had visited Kullu six times within
one year. He was in touch with the owner of the vehicle. 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
12 ( 2024:HHC:13654 )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.
10. 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.
11. 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
13 ( 2024:HHC:13654 )
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.”
12. 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
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.
13. 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
14 ( 2024:HHC:13654 )
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.
14. 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 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 recognised 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
15 ( 2024:HHC:13654 )
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.”
15. Therefore, his bail petition can only be considered
based on the change in the circumstances, and it is not
permissible to review the order passed by the Court.
16. The status report shows that the petitioners were
found in touch with each other w.e.f. 08.02.2023 till 10.02.2023.
They had talked to each other seven times. Petitioner- Hardik
Chawda, had not hired a taxi from Kullu to go to his destination
but had asked the owner to send a taxi from Punjab. The owner
made a false statement that his vehicle developed a defect, and
the petitioner – Mangat Muhammad was sent as a mechanic. It
was found from the call details record and the receipt of the toll
plaza that the vehicle had crossed the toll plaza on 09.02.2023 at
03:34 pm. The conduct of the petitioners in handing over the
back-pack to each other after the vehicle was intercepted, prima
facie, shows that they were aware of the contents of the same,
16 ( 2024:HHC:13654 )
and that is why they were trying to get rid of it. These
circumstances, prima-facie, connect the petitioners with the
commission of offences punishable under Sections 20 & 29 of
ND&PS Act. Since the petitioners were found in possession of a
commercial quantity of charas in their possession; hence, the
rigours of Section 37 of the ND&PS Act apply to the present case.
17. In the present case, there is nothing on record to
show that the petitioners are not connected to the commission of
a crime or that they will not commit any offence in case of their
release on bail. Hence, the petitioners cannot be held entitled to
bail.
18. It was submitted on behalf of petitioner- Hardik
Chawda, that there is a delay in the trial. This is not acceptable.
The status report shows that the prosecution has examined
seven witnesses. The matter was listed on 04.11.2024 before the
learned trial Court. The copies of the order sheets placed on
record show that the charge was framed on 07.03.2024. One
witness was examined on 19.04.2024, two witnesses were
examined on 17.05.2024, one witness was examined on
26.06.2024, two witnesses were examined on 27.06.2024, one
witness was examined on 11.09.2024, and the matter was fixed
17 ( 2024:HHC:13654 )
for 27.12.2024. The order sheets clearly show that the case is
progressing at a normal pace and the submission that there is
delay in the progress of the trial is not acceptable.
19. No other point was urged.
20. In view of the above, the petitioners are not entitled
to the concession of bail; hence, the present petitions fail, and
they are dismissed.
21. The observation made hereinabove shall remain
confined to the disposal of the petitions and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
06th December, 2024
(Shamsh Tabrez)