Jammu and Kashmir High Court: Rajnesh Oswal, J. allowed the application and enlarged the applicants on bail.
The applicants in the instant case were arrested for offences falling under Sections 8/21 and 29 Narcotic Drugs and Psychotropic Substances Act, 1985. It was alleged that the recovered contraband was heroin.
Counsels for the applicants, Mohd. Yaseer Choudhary, Syed Aaqib Mujtaba, and Ashfaq Mir argued that the said contraband, even if taken as a whole, didn’t fall within the category of commercial quantity and rather would fall within the category of the intermediate quantity. Further, the applicants had been in custody for more than eight months without trial because the proceedings not being conducted because of restrictions imposed due to COVID-19 pandemic and no witness has been examined by the trial court to date. It is further submitted that apart from the FIR, the prosecution didn’t bring forth any incriminating facts before the Court showing involvement of the applicants in any similar type of offences earlier.
The respondent-Union Territory objected by contended that filed the application was not maintainable for the reasons that to maintain a subsequent/successive bail application, change of circumstance is required. However, in the instant application, there is no change of circumstance rather the applicants are trying their luck before this Court. It was further contended that that the applicants did not deserve to be enlarged on bail as they are drug peddlers. This objection was raised by relying on the Supreme Court verdict in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42.
The Court went the other direction and relied on another verdict of the Supreme Court in Jagmohan Bahl v. State (NCT of Delhi), (2014) 16 SCC 501 wherein it was held that the findings of the Court or higher court while rejecting the earlier bail application are to be considered when the bail application is filed subsequently either before the same court/ court of coordinate jurisdiction or before the subordinate court. Further, as a rule, the successive bail application is required to be heard by the same judge. Once the higher Court rejects the bail application, then the fresh bail application cannot be entertained by the subordinate court unless there is a change of circumstance/situation. Even before the same Court, the successive bail applications cannot be entertained on the same facts when the earlier bail application has been rejected. The principle of bar in entertaining successive bail application without change of circumstance shall apply in those cases where the subsequent bail application is filed before the same court or the court of co-ordinate jurisdiction. Thus if the bail application is rejected by the Court, the accused is well within his right to approach the higher court on similar facts for grant of bail but not vice-a-versa.
Furthermore, in Diwan Singh v. State of J&K, 2010(3) JKJ 367 it was held that once an anticipatory bail application is rejected by the Sessions Court on the same cause of action, fresh application before High Court can be filed.
Thus, the Court while pronouncing its decision stated that:
“The conclusion of the trial may take some time as there is no possibility of the conclusion of trial in near future so the applicants cannot be kept in custody for long time as a matter of punishment.”
Nevertheless, the Court also held that since the quantity of recovered contraband was an intermediate quantity, the rigors of Section 37 of the NDPS Act could not apply.[Liaqat Hussain v. Union Territory of J&K, 2020 SCC OnLine J&K 424, decided on 25-08-2020]
