2025:HHC:28477 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1869 of 2025 Reserved on: 18.08.2025 Date of Decision: 22.08.2025 Akshay Kumar ...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. Sanjeev Kumar Suri, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 131 of 2023, dated 29.09.2023, for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “ND&PS”) registered at Police Station Gagret, District Una, Himachal Pradesh. 2. It has been asserted that, as per the prosecution, the police party intercepted a vehicle bearing registration No. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:28477 HP06A-6723 and recovered 22.04 grams of heroin during its search. The police have completed the investigation and filed the charge sheet before the Court. The petitioner is innocent, and he was falsely implicated. The petitioner had earlier filed a bail petition, which was registered as Cr.MP(M) No. 827 of 2024 and was dismissed on 29.05.2024. The petitioner was arrested on 29.09.2023. He is the sole bread earner of the family. He would abide by all the terms and conditions which the Court may impose, hence the petition. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 28.09.2023 when a secret information was received that a vehicle bearing registration No. HP-06A-6723 was transporting a huge quantity of Heroin. The police completed the codal formalities and associated two independent witnesses, namely, Munish Kumar and Aakash Thakur. The police stopped the Alto Car bearing registration no. HP-06A-6723 at about 8:20 p.m. The driver revealed his name as Akshay Kumar (the present petitioner), and another person sitting with him revealed his name as Sushil Kumar. The police searched the vehicle and recovered 22.04 grams of heroin. The police seized the heroin 3 2025:HHC:28477 and arrested the occupants. The accused revealed that Heroin was purchased from Honey. The police arrested Honey. Seven (7) F.I.R.s have been registered against the petitioner. As per the result of the analysis, the total weight of the exhibit was found to be 21.556 grams, and it was a sample of Diacetyl morphine (Heroin). The police prepared the challan after completion of the investigation and presented it to the Court. A supplementary challan was filed before the Court on 22.07.2024. The matter is now listed for recording the prosecution evidence on 25.08.2025. Hence, the status report. 4. I have heard Mr. Sanjeev Kumar Suri, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 5. Mr. Sanjeev Kumar Suri, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. The petitioner has been behind the bars since 29.09.2023. The prosecution has failed to complete the evidence, which violates the petitioner’s right to a speedy trial; therefore, he prayed that the present petition be allowed and that the petitioner be released on bail. 4 2025:HHC:28477 6. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner had filed a bail petition earlier, which was dismissed by this Court. A subsequent bail petition only lies when there is a change in the circumstances. Hence, 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 earlier filed a bail petition bearing CrMP(M) No. 827 of 2024, which was dismissed on 29.05.2024. He had filed another bail petition, which was registered as CrMP(M) No. 2946 of 2024, and was dismissed on 21.03.2025. 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 5 2025:HHC:28477 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. 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. This Court had earlier held that the petitioner was, prima facie, found in possession of the heroin. Subsequent bail 6 2025:HHC:28477 petition does not amount to a review of the earlier order, and it is impermissible to record contrary findings in the present proceedings. Therefore, the submissions that the petitioner was falsely implicated cannot be considered in the present proceedings. 11. Perusal of the earlier bail order CrMP(M) No. 2946 of 2024 shows that the adjournments were sought on behalf of the petitioner for the consideration of the charge on 21.05.2024, 02.08.2024 and 20.11.2024. The learned Trial Court framed the charges on 13.12.2024 and listed the matter for recording the statements of prosecution witnesses on 30.04.2025, 05.05.2025 and 06.05.2025, vide order dated 10.01.2025. The statement of one witness was recorded on 30.04.2025. The matter was taken up on 06.05.2025, and two witnesses were examined. The matter was ordered to be listed on 22.08.2025, 23.08.2025 and 25.08.2025. The recording of statements of three witnesses within the period of five months does not show any delay in the progress of the trial. Further, the fact that the learned Trial Court had listed the matter on 22.08.2025, 23.08.2025 and 25.08.2025 shows the anxiety of the learned Trial Court to conclude the trial expeditiously. 7 2025:HHC:28477 12. It was submitted that the petitioner was found in possession of 22.04 grams of Heroin, and he has undergone a substantial part of his imprisonment, which can be ultimately imposed upon him, considering the principle of proportionality. This submission has to be accepted as correct. The status report does not show that the petitioner was convicted in the earlier FIR registered against him; rather, it has been mentioned that the cases are pending before the various Courts. Hence, the petitioner is not liable to enhanced punishment under Section 31 of the NDPS Act, and the principle of proportionality will apply to the present case. Applying the principle of proportionality, the petitioner has served a substantial part of the imprisonment, and he is entitled to bail on this consideration. 13. Further, it is undisputed that the co-accused has been released on bail by the learned Special Judge. The petitioner was denied bail because he was involved in the commission of similar offences in the past. The fact that the petitioner has undergone a substantial part of the imprisonment will outweigh the criminal antecedents. It was laid down by the Hon’ble Supreme Court in Ayub Khan v. State of Rajasthan, 2024 SCC OnLine SC 3763: 2024: INSC:994 that the criminal antecedents 8 2025:HHC:28477 may not be a reason to deny bail to the accused in case of his long incarceration. It was observed: “10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents.” 14. Consequently, the present petition is allowed, and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹1,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: - (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. (II) The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments. (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court. (IV) The petitioner will surrender his passport, if any, to the Court; and 9 2025:HHC:28477 (V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 15. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 16. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of District Jail Una at Bangarh, District Una, H.P. and the learned Trial Court through FASTER. 17. 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 22nd August, 2025 (Anurag) KARAN SINGH Digitally signed by KARAN SINGH Date: 2025.08.22 16:38:56 +0530