1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that an FIR No. 85/2023, dated 19.07.2023 was registered against the petitioner for the commission of offences punishable under Sections 21 and 29 of the Narcotics Drugs and Psychotropic Substances Act (in short ‘ND&PS Act’) and Section 14 of the Foreigners Act at Police Station Parwanoo, District Solan, H.P. . The F.I.R. has been registered on the basis of false and bogus facts. The police falsely implicated the petitioner in the case. He belongs to a respectable family. The police do not require him for further investigation. No recovery is to be effected from him. The petitioner is in jail. He would abide by all the terms and conditions, which may be imposed upon him. The challan has already been presented before the learned trial Court. The conclusion of the trial would take some time. All the other co-accused had already been released on bail. The petitioner had a valid Passport, but he could not produce the same earlier. The petitioner is entitled to bail on the principle of parity and he should not be discriminated on the ground of non-citizenship. Hence, the 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 the heroin from some intermediary. The police took him to Delhi. He 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. The police conducted the investigation and presented the Challan before the Court of learned Sessions Judge, Solan on 21.09.2023. Another F.I.R. No. 29 of 2023 dated 12.01.2023, under Section 174-A of IPC, was registered against the petitioner at Police Station Sector 29 Panipat, Haryana.
3. I have heard Mr Saravedaman Rathore, learned counsel for the petitioner and Ms Archna Negi, learned Additional Advocate General, for the respondent/State.
4. Mr. Saravedaman Rathore, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He could not produce his Passport or visa before the police due to a lack of knowledge of the Hindi language. He possessed a valid Passport and would apply for a Visa after his release on bail. The other co-accused have already been released on bail and the petitioner be released on bail on the principle of parity. He cannot be discriminated on the grounds of non-citizenship; therefore, he prayed that the present petitioner be released on bail.
5. Ms. Archna Negi, learned Deputy Advocate General for the respondent-State submitted that there is no change in the circumstances and the petition is not maintainable. The petitioner was involved in the commission of similar offences and FIR No. 164 of 2020 dated 4.6.2020 for the commission of offences punishable under Sections 21 and 29 of the NDPS, and Section 14 of the Foreigners Act, Section 177 of IPC and F.I.R. No. 29 of 2023, dated 12.01.2023, under Section 174-A of IPC, were also registered against him. Therefore, she prayed that the present application be dismissed.
6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
7. It is undisputed that the petitioner had earlier filed a bail petition, which was dismissed by this court. It was held in 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 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."
8. Similarly, it was held in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an earlier bail application was rejected, the court has to consider the rejection of the earlier bail application and then consider as to 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 application for bail should be granted.”
9. It was submitted that the petitioner could not produce his passport during the hearing of the earlier bail application. It was held by Suresh K.M. vs. State of Kerala (02.08.2023 - KERHC): MANU/KE/1898/2023 while dealing with a case of pre-arrest bail that failure to mention the relevant evidence does not entitle a person to file a subsequent bail application without the change in circumstances. It was observed:
“8. The order granting or refusing to grant a pre-arrest bail application is final, and the entertainment of a second application essentially leads to a review of the earlier order. However, a second or subsequent application for pre-arrest bail is not completely barred. It cannot be entertained in routine as well. An accused must establish the change in the circumstances sufficient to persuade the court to invoke its extraordinary jurisdiction to maintain the application for pre-arrest bail for the second time. A material change in fact situation or law is sine qua non for a second application for pre-arrest bail. The three Judge Bench of the Apex Court in Kalyan Chandra Sarkar v. Pappu Yadav MANU/SC/0045/2005 : [(2005 (2) KLT SN 4 (C. No. 3) SC: AIR 2005 SC 921] considered the legality and propriety of successive bail applications. It was held in paragraph 20 thus:
"Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or law which requires the earlier view being interfered with or where the finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application."
Following the principles of law laid down by the Apex Court in Kalyan Chandra Sarkar (supra), this Court, in Vineeth v. State of Kerala (MANU/KE/1797/2015: 2015 (5) KHC 224), held that successive bail applications without showing any change in the fact situation or circumstance requiring the invocation of the extraordinary jurisdiction of the High Court or the Court of Session under S.438 of Cr.P.C. can only be regarded as an abuse of the process of the court. The Full Bench of the Calcutta High Court in Sudip Sen v. State of W.B. (MANU/WB/0509/2010: 2010 Cri. L.J. 4628), after reiterating the principle that there is no general bar or impediment in moving a second application for pre-arrest bail, held that a person will be entitled to move the High Court or the Court of Session for the second time only on the ground of substantial change in the facts and circumstances of the case due to subsequent events. It was clarified that the accused would not be entitled to move the second application on the ground that the Court, on earlier occasions, failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court. The Full Bench of the Rajasthan High Court in Ganesh Raj v. State of Rajasthan [MANU/RH/0044/2005: 2006 (1) KLT SN 15 (C. No. 25) Raj. (F.B.)] took the view that a second or subsequent application under Section 438 of Cr.P.C. can be filed if there is a change in the fact situation or law which requires the earlier view being interfered with or where the earlier finding has become obsolete. A Single Bench of this Court in Muhammed Ziyad v. State of Kerala & Another (MANU/KE/1841/2015: 2015 (4) KLJ 22) deprecated filing successive bail applications without legal justification. Another Single Bench of this Court in Pandit v. State of Kerala (MANU/KE/2611/2018: 2018 (4) KLT 249) held that subsequent application for pre-arrest bail on the same grounds without any change in circumstances is liable to be rejected even summarily.
9. Thus, even though there is no absolute embargo in filing the subsequent application for pre-arrest bail, it can be entertained only if there is a substantial change in the facts and circumstances of the case, which requires the earlier view to be interfered with or where the earlier finding has become obsolete. Ordinarily, the grounds canvassed in the earlier application cannot be permitted to be reurged in the subsequent application. Nor could the accused in the subsequent application contend that the Court, while considering the earlier bail application, failed to advert any fact or material on record. A fact which was not in existence at the time of considering the earlier bail application but came into existence subsequently alone could be considered a change in facts and circumstances.”
10. Similar considerations will apply to the regular bail application.
11. It was submitted that filing of a charge sheet amounts to a change in circumstance and the petitioner is entitled to bail. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406: (2017) 2 SCC (Cri) 542: 2017 SCC OnLine SC 295 that filing of charge sheet does not amount to change in circumstances. It was observed:
"12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge sheet is filed it amounts to a change of circumstance. Needless to say, filing of the charge sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge sheet for the trial of the accused persons.”
12. Thus, the petitioner cannot claim the bail on the ground that the charge sheet has been filed.
13. The police have specifically stated that Section 14 of the Foreigners Act was added because the petitioner could not produce his passport and visa. The petitioner has not filed a copy of the 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.”
14. A heavy reliance was also placed upon the judgment of this Court in Criminal Misc. Petition (Main) No.1270 of 2022, titled as Ndubuisi Benedict vs State of H.P. decided on 05th July 2022 to submit that the Court had granted the bail in offences punishable under the Foreigners Act. It is to be noticed that the judgment in Imtizor Imamova (supra) was not brought to the notice of the Court while deciding judgment in Ndubuisi Benedict (supra). Therefore, the judgment was 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, 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 : (1955) 2 SCR 603] (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 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] 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], SCC para 41).
33. In MCD v. Gurnam Kaur [(1989) 1 SCC 101] 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], 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] having been rendered per incuriam, cannot be accepted as a precedent to decide the controversy in this case.
15. Thus, no advantage can be derived from the said judgment.
16. It was submitted that the petitioner is entitled to bail on the principle of parity. This cannot be accepted. The parity can be claimed when the circumstances are similar and not when the circumstances are different. It was laid down by the Hon’ble Supreme Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 : (2021) 2 SCC (Cri) 722: 2021 SCC OnLine SC 335 that while determining the parity the role of the accused has to be considered. It was observed on page 246
“Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident, and the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.”
17. This position was reiterated in Tarun Kumar v. Enforcement Directorate, AIR 2024 SC 169: 2023 SCC OnLine SC 1486 wherein it was observed:
“18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.”
18. In the present case, the petitioner has been charged with the commission of an offence punishable under Section 14 of the Foreigner’s Act, which will distinguish his case from the other co-accused against whom no such allegations have been made; hence no reliance can be placed on the principle of parity.
19. It was submitted that non-citizens cannot be discriminated on the grounds of non-citizenship alone. This submission is stated to be rejected because the Foreigner’s Act will only apply to non-citizens and not to citizens; therefore, the discrimination is inherent in the nature of the offence itself.
20. In the present case, there is no change in the circumstances and the petitioner cannot be enlarged on bail; hence, the present petition fails and the same is dismissed.
21. 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.
