( 2025:HHC:17726 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1140 of 2025. Reserved on: 26.05.2025. Date of Decision: 04.06.2025. Hans Raj .…Petitioner Versus State of H.P. ....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Abhishek Barowalia, Advocate. For the respondent/State. : Mr. Lokender Kutlehria, Additional Advocate General with HC Tejender No.219, I/O Kumarsain, District Shimla. ____________________________________ Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the police registered an F.I.R. No. 0024 of 2024, dated 21.04.2024, for the commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (“in short NDPS Act”), at Police Station Sadar Kumarsain, District Shimla, H.P. As per the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2( 2025:HHC:17726 ) prosecution's case, the petitioner was found in possession of 1 kg 229 grams of Charas. The petitioner was falsely implicated. There is nothing on record to show that the search of any of the passengers was conducted. The quantity of the contraband is just above the intermediate quantity. The Chemical Analyst stated that the presence of cannabinoids, including tetrahydrocannabinol, was detected. There is no mention of the resin of the cannabis plant, concentrated preparation and the resin known as hashish oil or liquid hashish; therefore, the substance cannot be said to be Charas. The petitioner had earlier filed a bail petition before this Court, which was registered at Cr. MP (M) No. 1909 of 2024 and the same was dismissed on 30.09.2024. Hence, the present petition. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 21.01.2024. They checked a bus bearing registration No. HP06A- 1557 at 9:30 a.m. They found the petitioner occupying seat No.1, having a backpack on his lap. He tried to conceal the backpack after seeing the police. The police became suspicious and searched the petitioner in the presence of the driver and conductor. The police recovered 1 kg and 229 grams of charas. The police have filed the charge sheet before the Court on 3( 2025:HHC:17726 ) 19.07.2024. 06 witnesses have been examined and the matter is now listed for the examination of remaining prosecution witnesses on 07.07.2025, and 08.07.2025 in the Court of learned Additional Sessions Judge, Rampur. The petitioner would indulge in the commission of a similar offence in case of his release on bail. He was found in possession of a commercial quantity of Charas. Releasing him on bail would encourage the drug peddlers to commit similar offences. Hence, it was prayed that the present petition be dismissed. 3. I have heard Mr. Abhishek Barowalia, learned counsel, for the petitioner and Mr. Lokender Kutlehria, Additional Advocate General, for the respondent/State. 4. Mr. Abhishek Barowalia, learned counsel for the petitioner, submitted that the independent witnesses, Sanju and Ramesh, have not supported the prosecution's case, which makes the prosecution's case highly suspect. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Lokender Kutlehria, learned Additional Advocate General, submitted that the mere fact that an independent witness has not supported the prosecution's case is not sufficient 4( 2025:HHC:17726 ) to discard it. The effect of the statements of the independent witnesses has to be seen along with the statements of other witnesses. The Court has to see a prima facie case while granting bail. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It is undisputed that earlier, the petitioner had filed a petition bearing Cr.MP (M) No. 1909 of 2024, which was dismissed on 30.09.2024. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that once a bail application has been dismissed, a 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, 5( 2025:HHC:17726 ) 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. Similar is the judgment delivered in State of M.P. v. Kajad, (2001) 7 SCC 673, wherein it was observed: - 8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous 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 in the circumstances, the second application would be deemed to be seeking a 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 [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments. 9. Similarly, it was held in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528, that where an earlier bail application has been rejected, the Court has to consider the rejection of the earlier bail application and then consider 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 6( 2025:HHC:17726 ) such earlier rejection the subsequent bail application should be granted.” 10. A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380, wherein it was observed: 9. When a learned Single Judge of the same court had denied bail to the respondent for certain reasons, and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of bail applications without there being any change of circumstances would lead to bad precedents.” 11. This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458, wherein it was observed: “30. Before concluding, we must note that though an accused has a right to make successive applications for the grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds, which persuade it to take a view different from the one taken in the earlier applications.” 12. It was held in Ajay Rajaram Hinge v. State of Maharashtra, 2023 SCC OnLine Bom 1551, that a successive bail application can be filed if there is a material change in the circumstances, which means a change in the facts or the law. It was observed: 7( 2025:HHC:17726 ) “7. It needs to be noted that the right to file successive bail applications accrues to the applicant only on the existence of a material change in circumstances. The sine qua non for filing subsequent bail applications is a material change in circumstance. A material change in circumstances settled by law is a change in the fact situation or law which requires the earlier view to be interfered with or where the earlier finding has become obsolete. However, a change in circumstance has no bearing on the salutary principle of judicial propriety that successive bail application needs to be decided by the same Judge on the merits, if available at the place of sitting. There needs to be clarity between the power of a judge to consider the application and a person's right based on a material change in circumstances. A material change in circumstance creates in a person accused of an offence the right to file a fresh bail application. But the power to decide such subsequent application operates in a completely different sphere, unconnected with the facts of a case. Such power is based on the well-settled and judicially recognized principle that if successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders, and the litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Court's time and that judicial discipline requires that such matter must be placed before the same Judge, if he is available, for orders. The satisfaction of material change in circumstances needs to be adjudicated by the same Judge who had earlier decided the application. Therefore, the same Judge needs to adjudicate whether there is a change in circumstance as claimed by the applicant, which entitles him to file a subsequent bail application.” 13. Therefore, the present bail petition can only be considered on the basis of the change in the circumstances, and it is not permissible to review the order passed by the Court. 8( 2025:HHC:17726 ) 14. In the present case, the section does not mention any change in the circumstances, and no case for the grant of bail is made out in the petition. 15. It was submitted that the independent witnesses have not supported the prosecution's case, and this is sufficient to grant bail to the petitioner. This submission is not acceptable. The mere fact that the independent witnesses did not support the prosecution's case is not sufficient to doubt the prosecution's case2. A perusal of the copies of the statements of the witnesses shows that they were cross-examined with reference to the previous statement, and their credibility is seriously in dispute. The effect of their statements is to be seen along with the other evidence at the time of the conclusion of the trial, and the petitioner cannot be released on bail simply because the independent witnesses have not supported the prosecution's case. It was laid down by the Hon’ble Supreme Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in serious offences Trial Court or the High Court should not entertain the bail application of the accused after the commencement of the trial and grant bail because of some discrepancy in the testimony. It was observed: - 2 Saurabh Bhatnagar vs State 2025:HHC:13899 9( 2025:HHC:17726 ) “14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath in entertaining the bail application of the Accused. 15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach its final conclusion, which may either result in the conviction of the Accused or acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event that the trial gets unduly delayed and that, too, for no fault on the part of the Accused, the Court may be justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed.” 17. Therefore, the petitioner cannot be released on bail, simply because independent witnesses had not supported the prosecution case. 18. It was submitted that there is a delay in the progress of the trial, and the petitioner is entitled to bail on this ground. This submission is not acceptable. A perusal of the status report 10( 2025:HHC:17726 ) shows that the prosecution has cited 11 witnesses out of whom 06 have been examined, and the matter is now listed for recording the statements of the remaining witnesses on 07.07.2025 and 08.07.2025. The petitioner was arrested on 21.04.2024, and the examination of 06 witnesses within one year does not show any delay. Further, the certified copies of the order sheets of the learned Trial Court were not filed to demonstrate that the delay is not attributable to the petitioner. Therefore, the petitioner cannot be released on bail because of the delay in the progress of the trial. 19. No other point was urged. 20. Consequently, the present petition fails, and the same is dismissed. 21. The observations made here-in-before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 04th June, 2025 (Shamsh Tabrez)