1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION (BAIL) NO. 122 OF 2009 Diwakar Pagi .... Applicant V/s Union of India .... Respondent Mr. J.P. D'Souza, Advocate for the Applicant. Mr. J. Vaz, Central Government Standing Counsel for the Respondent. CORAM : N.A. BRITTO, J. DATE : 9 th APRIL, 2009 ORDER : The applicant herein seeks his release on bail, after the same has been denied to him by the learned Special Judge, NDPS Court, Mapusa by order dated 21/01/2009. 2. The facts stated show that Rajesh and Jayesh Anand Dhuri are brothers and the applicant herein is the chairperson of Canacona Municipal Council. Rajesh Anand Dhuri was arrested on 27/11/2008 for having been found in possession of 1.010 kgs. of hashish and his statement was recorded under Section 67 of the Act. On the same day, when the said accused Rajesh Anand Dhuri was being brought from Canacona to Panaji, he received a call from his brother Jayesh Anand Dhuri and that call was transferred to the seizing officer i.e. Superintendent of Customs & Central Excise and after the 2 former identified the latter, an offer of Rs.5 lacs was made for the release of the said Rajesh Anand Dhuri. The Investigation Officer filed the complaint before the CBI and, on the same day, the present applicant and one Ravi Narayan Pagi were arrested when they came with Rs. 2 lacs to be paid to the Investigation Officer, as initial payment, towards the said sum of Rs. 5 lacs. As per the Investigation Officer, the said Rajesh Anand Dhuri has admitted that his brother Jayesh Anand Dhuri is an accomplice and the present applicant took due care of the complaints lodged against him and his said brother Jayesh Anand Dhuri with the authorities and they would help him during election by giving logistical support as well as monetary support as and when he required the same. 3. The application has been opposed by the Investigation Officer by reply dated 6/04/2009. 4. The records show that the present applicant had filed a bail application before the learned Special Judge of the said Court which came to be dismissed on 12/12/2008. The said Jayesh Anand Dhuri was granted anticipatory bail by the learned Special Judge on 22/12/2008. Thereafter, the present applicant approached this Court for bail and his application came to be rejected by this Court by order dated 31/12/2008 in Criminal Application (Bail) No. 335/2008. The applicant herein again approached the learned 3 Special Judge for bail and his application came to be rejected again by order dated 21/01/2009. In rejecting the bail application, by order dated 12/12/2008, the learned Special Judge observed that at present there was material collected by the Investigation Officer, the said Superintendent of Customs, which shows that the main accused by name Rajesh Anand Dhuri was found in illegal possession of commercial quantity of hashish and in order to save him from any prosecution, his brother Jayesh, who was then absconding along with the present applicant tried to harbour the said main accused by offering gratification to the said Superintendent of Customs. The present applicant has been detained for having committed offences punishable under Section 27(A), 28 and 29 of the NDPS Act, 1985. 5. Shri J.P. D'Souza, the learned Counsel appearing on behalf of the present applicant submits that the main accused Rajesh Anand Dhuri was already in custody of the said Superintendent of Customs on 27/11/2008 and, as such, the present applicant by no stretch of imagination would have been harbouring him. The learned Counsel further submits that Jayesh Anand Dhuri has also been granted bail and, as such, the applicant herein is also entitled to be admitted to bail. Learned Counsel further submits that if at all the applicant took part in bribing the said Superintendent of Customs, that could not be said to be harbouring with a view to invite the applicability either of Section 27(A), 28 and 29 of the said Act. 4 6. Shri D'Souza has also referred to para 6 of the reply filed and has submitted that the Superintendent of Customs has himself stated that Rajesh and Jayesh had no reasonable explanation to prove that they were not harbouring or abetting the crime. 7. On the other hand, Shri Vaz, learned Public Prosecutor, appearing on behalf of the respondents, has drawn my attention to para 7 of the said reply filed and has submitted that it is their case, that the present applicant had not only been abetting the offences committed by Shri Rajesh Anand Dhuri, but they have found that he is also a party to a criminal conspiracy. Shri Vaz has further submitted that once it is held that the offence committed by the present applicant is serious in nature and in the light of Section 37 of the Act, the present applicant would not be entitled to bail and in this context learned Special Public Prosecutor has placed reliance on the case of Narcotics Control Bureau V/s. Kishanlal & Ors. (1991 (1) SCC 705) wherein the Apex Court has held that Section 37 of the Act being a special provision, general provisions of Section 439 of the Criminal Procedure Code will have to be read subject to the limitations provided by it, in view of Section 4 of Criminal Procedure Code. Learned Counsel has also placed reliance on the case of Babua alias Tazmul Hossain V/s. State of Orissa (2001 (2) SCC 566) wherein the Apex Court has held that the Court has to examine whether 5 the prosecution statement if believed would result in conviction and if the Court can give no answer in the negative, bail cannot be granted. Reliance has also been placed on the case of State of M.P. V/s. Kajad (2001 (7) SCC 673) wherein the Apex Court has reiterated the legal position with reference to Section 37 of the said Act and has stated that bail can be granted only under exceptional circumstances only when the Court is satisfied under sub- clause (ii) that the accused is not guilty on the basis of record produced. The Apex Court has also deprecated the liberal approach in granting bail. Last but not least, the Apex Court has also reiterated that successive bail applications are not permissible and once the first bail application is rejected, the second one is permissible only in case there are changed circumstances. 8. The case is still under investigation as submitted by the learned Public Prosecutor, in that no charge sheet has been filed till date against any of the accused. Surprisingly, there is no mention made in the application to the order of this Court dated 31/12/2008 in Criminal Application (Bail) No. 335/2008 nor the attention of the Court was invited to it at the time of arguments, though the same forms part of the record. I do not wish to say anything more at present on this aspect, though this practice needs to be discouraged. If the said Jayesh Anand Dhuri was admitted to anticipatory bail, that was by order dated 22/12/2008, before this Court rejected the bail application of the present applicant by order dated 31/12/2008. That the said 6 Jayesh Anand Dhuri was admitted to bail was a fact which could have been brought to the notice of this Court while passing order dated 31/12/2008. This Court by order dated 31/12/2008 has stated that considering the provisions of Section 27(A) r/w Section 2(a)(b) of NDPS Act, and considering the provisions of Section 37 of NDPS Act, the case was not a fit case for the grant of bail. Nothing has changed since then, and, that being the position, the application for bail needs to be rejected. Courts do not encourage successive bail applications being filed unless there is change in circumstances. That is the view held by the Apex Court in cantena of its decisions. The case of State of Maharashtra V/s. Captain Buddhikota Subha Rao (AIR 1989 SC 2292) and State of M.P. V/s. Kajad (supra) are two of such decisions. 9. Application rejected. N.A. BRITTO, J. NH/-