2025:HHC:29192 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1838 of 2025 Reserved on: 25.8.2025 Date of Decision: 29.8.2025. Nived Lal ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Karan Kapoor, Advocate. For the Respondent/State : Mr. Ajit Sharma, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 208 of 2023, dated 28.6.2023, registered at Police Station, Sadar, District Kullu, H.P., for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’). 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:29192 2. It has been asserted that, as per the prosecution, the police party was on patrolling duty on 28.6.2023. They found two people sitting on the water tank at 4.30 P.M. at the Barogi footpath. When they found out about the identity of the police, they attempted to run away but were apprehended. They revealed their names as Nived (present petitioner) and Cijo Pee Anjit. The police checked the carry bag being carried by them and found 1.715 kilograms of charas and 58 grams of ketamine. The police seized the articles and arrested the petitioner and the co-accused. Charas was confirmed to be an extract of cannabis, and ketamine was found to be a sample of starch after the analysis. The police submitted the charge sheet. The petitioner has been in custody for more than one year and nine months. He had earlier filed a bail petition, which was registered as Cr.MP(M) No. 2394 of 2024, and was dismissed on 27.12.2024. The independent witness has not supported the prosecution’s case. The contraband was recovered from the bag being carried by the co-accused. There is nothing to connect the petitioner with the commission of crime. The matter is listed on 14.10.2025 after three months. The petitioner’s right to a speedy trial is being violated. The quantity of the charas is marginally above 3 2025:HHC:29192 the commercial quantity. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 28.06.2023 at Barogi footpath. They found two persons sitting on the water tank at about 4:30 pm. One person had kept a carry bag on his lap, and the other person had kept his arm on the former. HC Ram Chand enquired about the names and addresses of those persons. They questioned the authority of HC Ram Chand to enquire about their names and addresses. HC Ram Chand showed his identification document and revealed that he was a police official. Both people attempted to run away. The police apprehended both persons. One person revealed his name as Nived (the present petitioner), and the other person revealed his name as Cijo Pee Anjit. The police checked the carry bag in the presence of Tehal Singh and Constable Ajay Kumar and found 1.175 kgs. of charas and 58 grams of ketamine in it. The police seized the charas and the ketamine and arrested the petitioner and the co-accused. Charas and ketamine were sent to FSL, and as per the result, the charas was confirmed to be an 4 2025:HHC:29192 extract of cannabis and a sample of charas, whereas ketamine was found to be a sample of starch, which was not covered under the NDPS Act. The police filed the charge sheet on 31.10.2023. The prosecution has cited sixteen witnesses. Thirteen witnesses have been examined, and the matter is now listed on 14.10.2025 and 15.10.2025 for recording the statements of prosecution witnesses. Hence, the status report. 4. I have heard Mr. Karan Kapoor, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State. 5. Mr. Karan Kapoor, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated based on suspicion. There is nothing to connect the petitioner with the commission of the crime. The prosecution has failed to complete the evidence despite the lapse of more than one and a half years, which violates the petitioner’s right to a speedy trial. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner had 5 2025:HHC:29192 abetted the possession of the commercial quantity of charas and the rigours of Section 37 of the ND&PS Act apply to the present case. The petitioner has failed to satisfy the twin conditions laid down under Section 37 of the ND&PS Act. There is no delay in the trial. The statements of three witnesses are to be recorded, and the matter is listed on two consecutive dates. Therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. It is undisputed that the petitioner had filed a bail petition, which was registered as Cr.MP(M) No. 2394 of 2024, and was dismissed on 27.12.2024. 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, 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 6 2025:HHC:29192 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. 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 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 7 2025:HHC:29192 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. 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 circumstances. A material change in 8 2025:HHC:29192 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 a 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 recognised 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 based on the change in the circumstances, and it is not permissible to review the order passed by the Court. 9 2025:HHC:29192 14. It was submitted that the allegations in the FIR do not show the petitioner’s involvement. The petitioner was not found in possession of the charas, and as per the prosecution, charas was recovered from the carry bag, being carried by the co-accused. This Court has already dealt with this submission in the earlier bail petition and held that the conduct of the accused of running away after knowing the identity of the police prima facie, showed his involvement in the commission of crime. This Court does not review the order passed by it while deciding the subsequent bail petition. Therefore, it is impermissible to raise this submission that there is no, prima facie, material to connect the petitioner with the commission of crime. 15. It was laid down by the Hon’ble Supreme Court in State of M.P. v. Kajad, (2001) 7 SCC 673: 2001 SCC (Cri) 1520: 2001 SCC OnLine SC 1070 that it is impermissible to review the earlier order of bail in the subsequent bail petition, and the Court can only consider the change in circumstances. It was observed at page 676: 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 10 2025:HHC:29192 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 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. 16. It was submitted that the independent witness has not supported the prosecution’s case, which makes the prosecution’s case highly doubtful. This submission will not help the petitioner. The mere fact that an independent witness has not supported the prosecution’s case is not sufficient to grant bail to the petitioner. His testimony is to be seen along with other evidence at the time of the conclusion of the trial. 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: - “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 to entertain the bail application of the Accused. 11 2025:HHC:29192 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 conclusion, which may either result in the conviction of the Accused or the 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 if 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. Similarly, it was held by this Court in Suraj Singh v. State of H.P., 2022 SCC OnLine HP 268 that the Court exercises bail jurisdiction cannot appreciate the contradictions in the evidence. It was observed: 10. Petitioner has placed reliance on the statements of witnesses already recorded by the learned Special Judge, in support of his argument to the effect that, from perusal of these statements, reasonable grounds can be entertained for concluding prima facie innocence of the petitioner. The arguments raised on behalf of the petitioner deserve to be rejected for the reason that this Court, while dealing with the bail application, will not 12 2025:HHC:29192 appreciate the evidence being recorded during the trial. Undisputedly, only some of the witnesses out of the entire list of witnesses relied upon by the prosecution have been examined. In these circumstances, it is not prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence. 18. Therefore, no advantage can be derived from the fact that the independent witness has not supported the prosecution’s case. 19. 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 cannot be accepted. The status report shows that 13 witnesses out of 16 witnesses have been examined, and the matter is now listed for recording the statements of prosecution witnesses on 14.10.2025 and 15.10.2025. The petitioner was arrested on 28.6.2023. The charge sheet was filed before the Court on 31.10.2023. The examination of 13 witnesses within a period of 2 years does not show any delay. Further, the photocopies of the order sheets show that Constable Ajay Kumar was present on 17.7.2025, but he was not cross-examined at the request of learned counsel for the petitioner. This shows that the delay is also attributable to the petitioner, who is not ready to cross-examine the witnesses examined by the prosecution. 13 2025:HHC:29192 Since a person cannot take advantage of his own wrong, therefore, the petitioner cannot claim any delay because he himself sought adjournment to cross-examine the witnesses. 20. In view of the above, the present petition fails and the same is dismissed. 21. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 29th August 2025 (Chander)