Rakesh Kainthla, Judge
1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that FIR No. 85 of 2023, dated 19.07.2023 was registered against the petitioner for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) at Police Station Parwanoo, District Solan. H.P. A bare reading of the FIR shows that no case is made out against the petitioner. As per the prosecution, the police party apprehended Vijay Sapra.Amarjeet Singh and Vipul Sharma on 19.7.2023 and recovered 25.24 grams of heroin from their possession. They disclosed the involvement of the petitioner and the petitioner was arrested on 24.7.2023. The name of the petitioner was not mentioned in the FIR and the petitioner was arrested only on the disclosure statement of the co-accused. Co- accused have already been released on bail. The quantity of heroin stated to have been recovered from the possession of the co-accused is an intermediate quantity and rigours of Section 37 of the N.D.P.S Act do not apply to the present case. No contraband was recovered from the conscious possession of the petitioner. The petitioner was arrested on 24.7.2023 and he is in custody. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Hence the present petition.
2. Police filed a status report asserting that the police party was on patrolling duty on 18.7.2023. A secret information was received at 7.20 p.m. that a vehicle bearing registration no. DL-1CJ-7227 was parked at Koti. Three persons were sitting in the vehicle. They intended to sell the heroin. In the case of a search of the vehicle, a huge quantity of heroin could be recovered. The police reduced the information to writing and sent it to the Supervisory Officer. The police associated two persons and went to the spot. The police found a vehicle bearing registration no. DL-1CJ-7227 parked on the spot. Three persons were sitting in the vehicle, who identified themselves as Amarjeet Singh, Vipul Sharma and Vijay Sapra. Police searched the vehicle and recovered 25.24 grams of heroin. The police seized the heroin and the vehicle and arrested the occupants. The police conducted the investigation. The co-accused Vijay Sapra revealed that he had purchased heroin from some intermediary. The police took him to Delhi. Vijay Sapra identified the present petitioner, as the person, who had sold the heroin to him. The police seized the mobile phone and took the printout of the WhatsApp conversation between Vijay Sapra and the petitioner. The petitioner could not produce any passport or visa. An FIR No. 164 of 2020 dated 4.6.2020 was registered against the petitioner for the commission of offences punishable under Sections 21 and 29 of the N.D.P.S Act and Section 14 of the Foreigners Act and Section 177 of IPC. The police conducted the investigation and presented the challan before the Court of learned Session Judge, Solan on 21.09.2023.
3. I have heard Mr Dheeraj Kumar Vashisht, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State.
4. Mr. Dheeraj Kumar Vashisht, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. There is no evidence against the petitioner except the statement made by the co-accused which is not legally admissible. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the petitioner does not have a valid passport and visa. The petitioner was involved in the commission of a similar offence in the past and the chances of his committing the offence in case he is released on bail cannot be ruled out. Hence, he prayed that the present petition be dismissed.
6. I have given considerable thought to the rival submissions 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 Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-
“12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 [LQ/SC/2004/345] where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:
“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 [LQ/SC/2002/371] : 2002 SCC (Cri) 688] [LQ/SC/2002/371] and Puran v. Rambilas [(2001) 6 SCC 338 [LQ/SC/2001/1208] : 2001 SCC (Cri) 1124] [LQ/SC/2001/1208] .)”
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
"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 [LQ/SC/2002/371] and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 [LQ/SC/2004/345] . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, [LQ/SC/2010/1194] 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. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.
"10. The police have specifically stated that Section 14 of the Foreigners Act was added because the petitioner could not produce his passport and visa. It was laid down by this Court in Imtizor Imamova versus State of H.P. [2010 (2) Shim. LC 63 = Latest HLJ 2010(2) 754 (HP) = 2010(2) Him. L.R. 801] that no foreigner has any right to enter or remain in India. He can enter only with a visa, which is kind of a limited leave. Once, the visa expires, the person has no right to remain on Indian soil and if he remains so, he commits an offence. Therefore, bail cannot be granted to a foreigner accused of committing an offence punishable under Section 14 of the Foreigners Act. It was observed:
“5. It is quite shocking that when the petitioner and other co-accused were found without any valid passport and visa, why the learned trial Court granted bail to them because every minute stay of a "foreigner" within the territory of the country is a recurring offence. On examining the record, while granting bail to the petitioner and other co-accused, the learned Magistrate was oblivious of the provisions of the Foreigners Act, 1946 the order passed under Section 3 of the Foreigners Order, 1948 and the Rules framed thereunder.
6. No foreigner has any right, as such, to enter or remain in India, as he/she likes and his entry into and stay in this country are regulated by the provisions of the Foreigners Act, 1946 and Rules made thereunder, for a variety of reasons.
7. A visa issued to a foreigner is in the nature of a limited leave to enter this country or stay there, for a duration controlled and limited by the terms of the visa issued. Such leave also carries with it certain responsibilities, obligations and discipline and the machinery by which such leave to enter or remain is regulated, in the larger interest of the country, cannot be lightly tampered with, particularly by foisting anything that would destroy that machinery.
8. The learned Judicial Magistrate could not have equipped them with a license by passing an order of bail to stay in India without any passport and valid visa. Rather the Judicial Magistrate, instead of granting bail, should have taken the case on a day-to-day basis and decided the case on merits. In case the accused has found to be not guilty or guilty of the offence, they shall have to be ordered to be deported after the completion of the sentence, if any imposed.”
11. Mr Dheeraj K. Vashisht, learned counsel for the petitioner relied upon the judgments of this Court in Racheal Andisimmbonne @Linda Mamwali vs. State of H.P. 2021 HHC 15572 and Theophilus Ndubulsi Nwosu Vs. State of Himachal Pradesh 2020 (3) Shim. LC 1566 to submit that the Court had granted the bail in offences punishable under the Foreigners Act. It is to be noticed that in neither of the judgments, the judgment in Imtizor Imamova (supra) was brought to the notice of the Hon'ble Court. Therefore, these judgments were rendered per incuriam. Hon'ble Supreme Court held in M.P. Rural Road Development Authority v. L.G. Chaudhary Engineers & Contractors, (2012) 3 SCC 495, [LQ/SC/2012/94] that when a judgment is delivered per incuriam it loses its binding force and cannot be accepted as a precedent. It was observed:-
28. The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. [1944 KB 718 (CA)] Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered “per incuriam”. The principles are: (KB p. 729)
“… Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present in its mind. Cases of this description are examples of decisions given per incuriam.”
29. The decision in Young [1944 KB 718 (CA)] was subsequently approved by the House of Lords in Young v. Bristol Aeroplane Co. Ltd. [1946 AC 163 (HL)], AC at p. 169 of the Report. Lord Viscount Simon in the House of Lords expressed His Lordship's agreement with the views expressed by Lord Greene, the Master of Rolls in
the Court of Appeal on the principle of per incuriam (see the speech of Lord Viscount Simon in Bristol Aeroplane Co. Ltd. case [1946 AC 163 (HL)], AC at p. 169 of the Report).
30. Those principles have been followed by the Constitution Bench of this Court in Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 [LQ/SC/1954/175] : (1955) 2 SCR 603 [LQ/SC/1954/175] ] (see the discussion in SCR at pp. 622 and 623 of the Report).
31. The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. v. Wakeling [(1955) 2 QB 379 (CA)], QB at p. 406. The principle has been stated as follows:
“… As a general rule, the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.”
32. In State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] [LQ/SC/1991/320] this Court held (SCC p. 162, para 40) that the doctrine of “per incuriam” in practice means “per ignoratium” and noted that the English courts have developed this principle in relaxation of the rule of stare decisis and referred to the decision in Bristol Aeroplane Co. Ltd. [1946 AC 163 (HL)] The learned Judges also made it clear that the same principle has been approved and adopted by this Court while interpreting Article 141 of the Constitution (see Synthetics and Chemicals Ltd. case [(1991) 4 SCC 139] [LQ/SC/1991/320] , SCC para 41).
33. In MCD v. Gurnam Kaur [(1989) 1 SCC 101] [LQ/SC/1988/456] a three- judge Bench of this Court explained this principle of per incuriam very elaborately in SCC para 11 at p. 110 of the Report and in explaining the principle of per incuriam the learned Judges held:
“11. … A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.”
34. In para 12 the learned Judges observed as follows: (Gurnam Kaur case [(1989) 1 SCC 101] [LQ/SC/1988/456] , SCC p. 111)
“12. … One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex- cathedra statement, having the weight of authority.”
35. Following the aforesaid principles, this Court is constrained to hold that the decision in Va Tech [(2011) 13 SCC 261] [LQ/SC/2010/77] having been rendered per incuriam, cannot be accepted as a precedent to decide the controversy in this case."
10. Therefore, no advantage can be derived by the petitioner from these judgments. Since the petitioner has failed to prove that he has a valid passport and visa to reside in this country, therefore, he cannot be released on bail to enable him to commit the offence under the Foreigners Act.
11. In view of the above, the petitioner is not entitled to bail, hence, the present petition fails and the same is dismissed.
12. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
