Sardar Wali Mohammad v. Union of India & Anr.

Heard the learned counsel appearing on behalf of the Applicant and the learned counsel for the Respondents

2. This is a third application for bail. The first application was rejected on merits by Sister Roshan Dalvi J. by order dated 12.11.2009. Thereafter, the second application was filed vide Criminal Application No.696 of 2010. The second application for bail was also rejected by this Court by order dated 3rd August,

2010. 2 (Appa 212 of 2011)

3. It is submitted by Shri Lala, the learned counsel appearing on behalf of the Applicant that the Applicant is in jail since last about 6 ½ years and the appeal is not likely to be heard in near future. He submitted that though by earlier order dated 3rd August, 2010, the appeal was fixed for final hearing in the week commencing from 23rd August, 2010, the matter is still pending in this Court. It is, therefore, submitted that there is a change in the circumstance and this Court may consider the application of the Applicant on merits. It is submitted that the Accused No.1 was released on bail by this Court and the only allegation against the Applicant is the confession which was given by him and which was recorded and which was later on retracted by him. It is alleged that he had deposited certain sum of money in the account of wife of the Accused No.1 and had, therefore, finalized the said deal. It is submitted that, therefore, since this is the only material on record, the Applicant deserves to be released on bail. Secondly, it is submitted that though it is mentioned in the order dated 3rd August, 2010 that the Applicant is likely to commit the offence again if he is released on bail since he was involved in two other cases under the NDPS Act, he was acquitted 3 (Appa 212 of 2011) in both the cases and, therefore, it could not be said that he was involved in two cases. He relied on a judgment of the Karnataka High Court in the case of Shankar Krishnasa Habib and another v. State of Karnatka [1992, CRI.L.J. 205] and more particularly paragraph 12 in the said judgment, wherein, the Court had accepted the assurance given by the Petitioner in the said case and had observed that in the event the prosecution found that he was still involved in similar activities, they could file an application for cancellation of bail.

4. On the other hand Ms.Rebecca Gonsalves, the learned counsel appearing on behalf of the Union of India submitted that there was no change in the circumstance and, therefore, this Court should not consider the application of the Applicant. Reliance was placed on the judgment of the Apex Court in the case of State of Madhya Pradesh v. Kajad [2001 AIR (SCW)3364]. Secondly, it was submitted that the Applicant was prosecuted in two similar cases and though he was acquitted in two cases, in one case, the Union of India had filed an appeal against the order of acquittal and the said appeal has been admitted by this Court. Reliance was placed on two judgments of the 4 (Appa 212 of 2011) Apex Court; (1) Union of India v. Mahaboob Alam [(2004) 4 Supreme Court Cases 105] and judgment in the case of Suresh Kumar Sharma v. Directorate of Revenue Intelligence which is unreported judgment of the Delhi High Court in Bail Application No. 1087 of 2009 dated 7.7.2009.

5. After having both the counsel, hence, in my view, it will not be possible to consider the application of the Applicant for bail on merits. The Apex Court in the case of State of Madhya Pradesh vs. Kajad (supra) has observed as under: “The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evidence from its scheme. A perusal of section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant and exception under sub- clause (ii) of clause (b) of section 37(1). For granting the bail the court must, on 5 (Appa 212 of 2011) the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.” and also in paragraph 8:- “(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 6 (Appa 212 of 2011) 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 and Anr. [JT 2000 (Suppl.2) SC 349 = 2001 (1) SCC 169] and various other judgments.”

6. Since the earlier applications of the Applicant were rejected on merits and since there is no change in the circumstances, it will not be possible to entertain the application on merits. The Application for bail, therefore, is dismissed. The hearing of the appeal, however, is expedited. Liberty is granted to the Applicant to apply for fixed date of hearing. (V.M. KANADE J.)