2025:HHC:36820 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP (M) No. 1867 of 2025 Reserved on: 15.10.2025 Date of Decision: 03.11.2025 Johnny ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the Petitioner : M/s Rakesh Chaudhary and Panku Chaudhary, Advocates. For the Respondent/State : Mr Jitender K. Sharma, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 85/2023, dated 19.07.2023 registered for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’), Section 14 of the Foreigners Act and Section 201 of Indian Penal Code (IPC) at Police Station Parwanoo, District Solan, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:36820 2. It has been asserted that, as per the prosecution, the police intercepted a vehicle bearing registration No. DL-1CJ- 7227. Vijay Sapra was occupying the driver’s seat, Amarjeet Singh was occupying the front seat, and Vipul Sharma was occupying the rear seat. The police searched the vehicle and recovered 25.24 grams of heroin. The police arrested the occupants of the vehicle and seized the heroin. The allegations against the petitioner are false. Vijay Sapra made a disclosure statement naming the accused. The petitioner had earlier filed bail petitions, which were registered as Cr.MP(M) No. 2784 of 2023, Cr.MP(M) No. 100 of 2024 and Cr.MP(M) No.1930 of 2024, and were dismissed on 15.12.2023, 26.04.2024 and 01.10.2024, respectively. There is an inordinate delay in the progress of the trial. The prosecution has cited 24 witnesses, out of whom only 14 witnesses have been examined. The trial is not likely to conclude soon. F.I.R. No. 164 of 2020, dated 04.06.2020 and F.I.R. No. 29 of 2023, dated 12.01.2023 are pending against the petitioner. The petitioner 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 were on patrolling duty on 18.7.2023. 3 2025:HHC:36820 They received a secret information at 7.20 p.m. that a vehicle bearing registration no. DL-1CJ-7227 was parked at Koti. Three people were sitting in the vehicle. They intended to sell the heroin, and a huge quantity of heroin could be recovered through their search. The police reduced the information to writing and sent it to the Supervisory Officer. The police associated two persons, and went to the spot where they found a vehicle bearing registration no DL-1CJ-7227. Three persons were sitting in the vehicle, who identified themselves as Amarjeet Singh, Vipul Sharma and Vijay Sapra. Police searched the vehicle and recovered 25.24 grams of heroin. The police seized the heroin and the vehicle and arrested the occupants. The police conducted the investigation. Vijay Sapra revealed that he had purchased the heroin from some intermediary. The police took him to Delhi. He identified the present petitioner as the person who had sold the heroin to him. The police seized the mobile phone and took the printout of the WhatsApp conversation between Vijay Sapra and the petitioner. The petitioner could not produce any passport or visa. The police presented the Challan before the Court of learned Sessions Judge, Solan, on 21.09.2023. An F.I.R. No. 164 of 2020, dated 04.06.2020 and F.I.R. No. 29 of 2023, dated 12.01.2023, are 4 2025:HHC:36820 registered against the petitioner. The matter was listed before the learned Trial Court for recording the statements of prosecution witnesses mentioned at Sl. No. 1 to 3 on 28.08.2025. Hence, the status report. 4. I have heard Ms/ Rakesh Chaudhary and Panku Chaudhary, learned counsel for the petitioner, and Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent/State. 5. Mr Rakesh Chaudhary, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. There is an inordinate delay in the progress of the trial. The prosecution failed to complete the evidence despite a lapse of two years since his arrest. This violates the petitioner’s right to a speedy trial. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State submitted that the earlier bail petitions filed by the petitioner were dismissed by this Court. 5 2025:HHC:36820 Subsequent bail petition lies only if there is a change in the circumstances. The petitioner has not pleaded any change in circumstances, and he is not entitled to bail. 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 record carefully. 8. It is undisputed that the petitioner had earlier filed bail petitions, which were registered as Cr.MP(M) No. 2784 of 2023, Cr.MP(M) No. 100 of 2024 and 1930 of 2024, and they were dismissed by this Court on 15.12.2023, 26.04.2024 and 01.10.2024, respectively. It was held in State of Maharashtra. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that 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 6 2025:HHC:36820 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 order was unsuccessfully challenged before the appellate 7 2025:HHC:36820 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 circumstances settled by law is a change in the fact situation or law 8 2025:HHC:36820 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 impermissible to review the order passed by the Court. 14. The earlier bail petitions of the petitioner was dismissed on the ground that the petitioner has been involved in 9 2025:HHC:36820 the commission of an offence punishable under the Foreigners Act, and the petitioner cannot be released on bail in view of the judgment of this Court in Imtizor Imamova versus the State of H.P. [2010 (2) Shim. LC 63 = Latest HLJ 2010(2) 754 (HP) = 2010(2) Him. L.R. 801]. The Hon’ble Supreme Court expressed its reservations about the grant of bail to a non-citizen in Onyeka Samuel versus State of H.P. in SLP (Criminal) No. 26692 of 2024, decided on 12.08.2024 in the matter arising out of the denial of bail to a foreign national based on the judgment of Imtizor Imamova (supra). Thus, the authority of the judgment in Imtizor Imamova (supra) has been shaken by the observations made by the Hon’ble Supreme Court. Since this Court is bound by the judgment of the Hon’ble Supreme Court, therefore, it has to accept the judgment passed by the Hon’ble Supreme Court in Onyeka Samuel (supra) rather than the judgment in Imtizor Imamova (supra). 15. The status report shows that the petitioner was arrested on 24.07.2023, which means that more than two years have elapsed since the petitioner’s arrest. Copies of the order- sheets show that the charges were framed on 02.09.2024. The statements of three witnesses each were recorded on 29.11.2024 10 2025:HHC:36820 and 27.05.2025. Statements of two witnesses each were recorded on 23.12.2024, 14.02.2025, 15.02.2025, 22.05.2025 and 22.09.2025. Statement of one witness was recorded on 30.5.2025. This means that statements of 17 witnesses have been recorded so far. 16. The order-sheets also show that adjournments have been sought on behalf of the accused repeatedly by the learned defence counsel. Learned defence counsel sought time for consideration of the charge on 11.06.2024 and 29.06.2024. Statements of two witnesses were recorded on 23.12.2024, but their cross-examination was deferred at the request of learned counsel for the accused. On 13.02.2025, witnesses at Sl. Nos. 3, 4, 5, 7 and 8 were present, but an adjournment was sought on behalf of the accused for their examination. The statement of one witness was recorded on 24.02.2025, but his cross- examination was deferred on the request of learned counsel for the accused. The learned Trial Court listed the matter on 25.06.2025, but a request was made on behalf of the accused that learned counsel would not be available on 25.06.2025 and the matter be adjourned. These order sheets show that the delay in the progress of the trial is attributable to the petitioner and not 11 2025:HHC:36820 to the Court or the prosecution. Since a person cannot take advantage of his own wrong, therefore, the plea that there is a delay in the progress of the trial and the petitioner is entitled to bail cannot be accepted. 17. There is no other change in the circumstances. The earlier bail was denied because the petitioner had criminal antecedents, and the possibility of the petitioner committing the same crime on his release on bail could not be ruled out. This circumstance has not changed, and the petitioner cannot be held entitled to bail. 19. Consequently, the present petition fails, and it is dismissed. 20. The observation made herein 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 03rd November, 2025 (ravinder)