2025:HHC:31481 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 2120 of 2025 Reserved on: 09.09.2025 Date of Decision: 15.09.2025. 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. Prashant Sen, Deputy Advocate General with HASI Pyare Lal, No. 1517 P.S. Kumarsain, District Shimla, H.P. ____________________________________ Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 0024 of 2024, dated 21.04.2024, registered for the commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (“in short NDPS Act”), at P.S. Kumarsain, District Shimla, H.P. 1. Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 2025:HHC:31481 2. It has been asserted that, as per the 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 two bail petitions before this Court, which were registered as Cr. MP(M) No. 1909 of 2024 and Cr.MP(M)No. 1140 of 2025, and they were dismissed on 30.09.2024 and 04.06.2025, respectively. Statements of seven witnesses have been recorded, two witnesses have given up, and only one witness remains to be examined. Hence, the present petition. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 21.04.2024. They checked a bus bearing registration No. HP06A-1557 at 9:30 a.m. They found the petitioner 3 2025:HHC:31481 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 filed the charge sheet before the Court on 19.07.2024. The prosecution cited 11 witnesses, and the prosecution evidence has been completed on 08.09.2025. Now, the matter is fixed for recording the statement of the accused under Section 313 of The Code of Criminal Procedure (Cr.P.C) on 29.10.2025. 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. 4. I have heard Mr. Abhishek Barowalia, learned counsel, for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State. 5. Mr. Abhishek Barowalia, learned counsel for the petitioner, submitted that the statements of all prosecution witnesses have been recorded. The statement 4 2025:HHC:31481 of Investigating Officer shows that there is a discrepancy in the weight of the contraband. The Investigating Officer had not associated the passengers of the bus as witnesses. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State, submitted that the prosecution associated two independent witnesses, and it was not necessary to associate the passengers of the bus. The petitioner had earlier filed two bail petitions, which were dismissed by this Court. Subsequent bail petition lies on the change in circumstances, but there is no change in the circumstances; 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 earlier, the petitioner had filed two petitions bearing Cr.MP (M) No. 1909 of 2024 and Cr.MP(M) No. 1140 of 2025, which were dismissed on 03.09.2024 and 04.6.2025, respectively. It was held in State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) 5 2025:HHC:31481 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, 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. 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 6 2025:HHC:31481 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. 10. 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.” 11. 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 7 2025:HHC:31481 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.” 12. 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.” 13. 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 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 8 2025:HHC:31481 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 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.” 14. 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. 9 2025:HHC:31481 15. In the present case, the petitioner does not mention any change in the circumstances, and no case for the grant of bail is made out in the petition. 16. It was submitted that there is a variation in the weight of the contraband taken on the spot before the learned Magistrate under Section 52-A of the NDSP Act, which is fatal to the prosecution’s case. This submission is not acceptable. It was laid down by this Court in Sohan Lal alias Bhau and others Vs. State of H.P. and others, 2019 STPL 3203 HP, that if there is a variation in the report of analysis and the certificate issued under Section 52-A of the NDPS Act, the certificate will prevail. It was observed: - “10. It would be evidently clear from the aforesaid exposition of law that the samples drawn and certified by the learned Magistrate in compliance with sub-sections (2) and (3) of Section 52-A are primary evidence and, therefore, had to be taken as true and any contradiction in such certification with the final report prepared by the prosecution, the quantity mentioned in the final report obviously had to give way to the certification so made by the Court under Section 52-A of the Act ibid.” 17. Therefore, as per the judgment, the certificate issued by the learned Judicial Magistrate is the primary evidence, and any discrepancy in the weight on the spot and before the learned Magistrate during the proceedings under Section 52-A of the NDPS Act will not be fatal. 10 2025:HHC:31481 18. It was submitted that the passengers were not associated as witnesses. This submission will not help the petitioner. It was rightly submitted on behalf of the State that the police had associated two independent witnesses, and it was unnecessary to multiply the witnesses. The Investigating Officer had already selected two independent witnesses, and he cannot be compelled to select any particular person unless his selection is shown to be faulty, which is a matter of trial 19. Learned counsel for the petitioner submitted that there are various discrepancies in the prosecution case, which are fatal to the prosecution case. This submission will not help the petitioner. 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, the 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 11 2025:HHC:31481 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.” 20. Therefore, the petitioner cannot be released on bail. 21. The prosecution is evidence is complete, and only the statement of the accused under Section 313 of Cr.P.C. is to be recorded. Hence, it cannot be said that there is any delay in the progress of the trial, justifying the petitioner's release on bail. 22. No other point was urged. 12 2025:HHC:31481 23. Consequently, the present petition fails, and the same is dismissed. 24. The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 15th September, 2025 (ravinder)