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2025 DAILYLAW 3817 (HP)

Birender Kumar v. State of Himachal Pradesh

2025-10-27

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail in FIR No. 236 of 2024, dated 19.10.2024, registered at Police Station Sadar, District Chamba, H.P., for the commission of offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS) and Section 39(1) (a) of H.P. Excise Act, 2011. 2. It has been asserted that, as per the prosecution, the police obtained a search warrant to search the petitioners’ house located at village Kiyani, Tehsil and District Chamba. The police searched the house and the cow shed in the presence of independent witnesses and recovered a plastic box kept near the door of the cow shed. The Investigating Officer checked the box and found cannabis in it. The police also recovered two boxes containing charas concealed beneath the tree adjacent to the cow shed. A steel box kept in the bundle of grass having Rs.4,99,500/- was also recovered by the police. The total weight of the charas was found to be 5.02 kgs. The police searched the store on the ground floor of the house and recovered a box containing 12 bottles of IMFL bearing Mark Imperial Blue. Police registered the FIR and seized the case property, and arrested the petitioner. The petitioner had earlier filed bail petitions, which were registered as Cr.MP(M) No. 286 of 2025 and Cr.MP(M) No. 1104 of 2025, and were dismissed on 13.03.2025 and 23.06.2025. The petitioner is innocent, and he was falsely implicated. He belongs to a respectable family. He has roots in society, and there is no apprehension of his absconding. The investigation is complete, and  no  fruitful  purpose  would  be  served  by  detaining the petitioner in custody. The Investigating Officer did not inform the grounds of arrest to the petitioner, which is violative of Article 22(1) of the Constitution of India. FIR Nos. 85/2022, 59/23 and 237/2011 were registered against the petitioner. Hence the petition. 3. The petition is opposed by filing a status report asserting that the police party had obtained a search warrant to search the house of Birender Kumar-the present petitioner. The police associated independent witnesses and searched the house and cowshed in their presence. The police recovered 1 plastic box kept near the door of the cowshed. The police checked the box and found cannabis in it. The police associated independent witnesses and searched the house and cowshed in their presence. The police recovered 1 plastic box kept near the door of the cowshed. The police checked the box and found cannabis in it. Police also recovered two boxes containing charas concealed beneath the tree adjacent to the cowshed. The police found a steel box kept in the bundle of grass on the upper floor  of  the  cowshed. The  police  checked  it  and found Rs. 4,99,500/- in it. The charas was weighed and its weight was found to be 5.92 kgs. The police checked the store on the ground floor and recovered a box containing 12 bottles of Imperial Blue. The police arrested the petitioner and seized the charas, liquor, and currency notes. The police filed the charge sheet before the learned Trial Court, and the matter was listed on 10.10.2025 for recording the statements of prosecution witnesses. FIR No. 85/2022 and FIR No. 59/2023 are registered against the petitioner, and FIR No. 237/2011 was compounded at his instance. The petitioner has a criminal history. A commercial quantity of charas was recovered from his possession. The petitioner would jump over the bail and abscond in case of his release on bail; therefore, it was prayed that the present petition be dismissed. 4. I have heard Mr N.S. Chandel, learned Senior Counsel, assisted by Mr Sidharth, Advocate, for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State. 5. Mr N.S. Chandel, learned Senior Counsel, submitted that the petitioner is innocent and that he was falsely implicated. No recovery was effected from the petitioner’s possession. The grounds of arrest were not communicated to the petitioner, and his arrest is illegal. The petitioner would abide by the terms and conditions which the Court may impose; hence, it was 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 earlier filed a bail petition which was dismissed by this Court. A subsequent bail petition only lies when there is a change in circumstances. The petitioner has not pleaded any change in the circumstances, and the present petition is not maintainable. The plea taken by the petitioner in the present petition was negated in the earlier petition. A subsequent bail petition only lies when there is a change in circumstances. The petitioner has not pleaded any change in the circumstances, and the present petition is not maintainable. The plea taken by the petitioner in the present petition was negated in the earlier petition. The Court cannot review the order passed by it while deciding the subsequent bail petition; 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 earlier filed bail petitions, which were registered as Cr.M.P. No. 286 of 2025 and 1104 of 2025, and were dismissed on 13.03.2025 and 23.06.2025. 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 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. 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 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. 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 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. 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. 14. It was submitted that the grounds of arrest were not communicated to the petitioner, and the petitioner is entitled to bail on this ground. This submission is not acceptable. It was laid down by a Division Bench of Allhabad High Court in Shashank Mishra versus State of U.P . and others 2025 SCC Online All 3189 that when the petitioner challenged his arrest nearly one and half years after his arrest, his bail applications were rejected at multiple stages, his plea that the grounds of arrest were not communicated to him and he is entitled to bail cannot be accepted. It was observed:- “11. Notwithstanding the above, it is pertinent to note that the petitioner has approached this Court nearly one and a half years after the arrest. During this intervening period, his bail applications were rejected at multiple stages, including by this Court. As such, the instant matter is distinguishable from Manjeet Singh v. State of U.P., 2025 SCC  OnLine  All  2119  and Sachin  Soni v. State  of U.P. Criminal Misc. WP No. 905 of 2025, dt. During this intervening period, his bail applications were rejected at multiple stages, including by this Court. As such, the instant matter is distinguishable from Manjeet Singh v. State of U.P., 2025 SCC  OnLine  All  2119  and Sachin  Soni v. State  of U.P. Criminal Misc. WP No. 905 of 2025, dt. 9-4-2025 (All) At no point prior to the present proceedings did the petitioner raise the issue of illegal arrest or violation of his constitutional rights. The legal position laid down in Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799 , cannot be stretched to imply that a litigant who remained silent throughout can, at any stage, invoke the extraordinary jurisdiction under Article 226 to challenge his remand. The same is reproduced herein below: (Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799 SCC pp. 818-819, paras 26-26.6) “26. Therefore, we conclude: 26.1. The requirement of informing a person arrested of the grounds of arrest is a mandatory requirement of Article 22(1). 26.2. The information on the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved. 26.3. When arrested accused alleges non- compliance with the requirements of Article 22(1), the burden will always be on the investigating officer/agency to prove compliance with the requirements of Article 22(1); 26.4. Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non- compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge- sheet and trial. But, at the same time, the filing of a charge-sheet will not validate a breach of constitutional mandate under Article 22(1); 26.5. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and 26.6. But, at the same time, the filing of a charge-sheet will not validate a breach of constitutional mandate under Article 22(1); 26.5. When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and 26.6. When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.” 12. In clause (f) of the judgment in Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799 , the Supreme Court clearly observed that release on the ground of violation of constitutional rights can be granted only if such violation is brought to the notice of the court by the accused or otherwise. In the case at hand, the record confirms that legal aid was offered to the petitioner, which he declined. He neither challenged his arrest earlier nor made any grievance during bail proceedings. The present petition appears to be a disguised attempt to secure release on grounds that were never taken or agitated before the appropriate forums. 13. This Court further notes that entertaining the present writ petition would effectively amount to nullifying the order passed by a Coordinate Bench of this Court on 15-4- 2024, rejecting the petitioner's bail. Such an action is not legally permissible, as it would amount to reviewing the said order under the guise of fresh relief. The doctrine of merger, as expounded in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74 : AIR 1970 SC 1 , is applicable. The remedy now sought is not distinct but is essentially a reiteration of the relief already denied. The same is extracted as below: (SCC p. 76, para 3) “3. Now, as is well known, Section 115 of the Civil Procedure Code, 1908, empowers the High Court to call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it. The same is extracted as below: (SCC p. 76, para 3) “3. Now, as is well known, Section 115 of the Civil Procedure Code, 1908, empowers the High Court to call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it. It can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction legally or with material illegality. The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made, the question is whether the orders of the subordinate court have become merged in the order of the High Court. If it has been merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under Article 226 or 227 of the Constitution. It is only if, by dismissal of the revision petition, the order of the subordinate court has not become merged in that of the High Court that it may be open to the party to invoke the extraordinary writ jurisdiction of that court. There again, the question will arise whether it would be right and proper for the High Court to interfere with an order of a subordinate court in a writ petition when a petition for revision under Section 115, CPC, against the same order has been dismissed. Such a consideration will also enter into the exercise of discretion in a petition under Article 225 or 227.” 14. A perusal of the said judgment is sufficient to cover this particular matter. Here, the bail application of the petitioner was rejected by the High Court. It is apparent that the grievance of illegal arrest was not raised either before the Sessions Judge or the High Court. The consequences which will follow if this writ petition is allowed were considered by us. Here, the bail application of the petitioner was rejected by the High Court. It is apparent that the grievance of illegal arrest was not raised either before the Sessions Judge or the High Court. The consequences which will follow if this writ petition is allowed were considered by us. Allowing this petition by setting the petitioner at liberty will result in upsetting the earlier order passed by another bench, vide which bail of the petitioner was rejected on merits. It will mean that the custody of the petitioner, which was earlier held legal by another bench, will be reviewed by this Bench after holding that the custody of the petitioner was illegal from the very beginning. Interpretation of what has been held in Vihaan Kumar v. State of Haryana, (2025) 5 SCC 799 and other judgments referred above cannot be stretched so far. Allowing the writ petition will also mean directing the Additional District Court Fast Track to review its earlier order of bail rejection. Doctrine of merger, as held in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74 : AIR 1970 SC 1 , is applicable here also. Bail rejected by the Sessions Judge was also rejected by the High Court. Allowing the writ petition will mean directing the Additional District Judge Fast Track Court to consider the application dated 29-4-2025 and indirectly asking to reconsider the bail application rejected by the High Court.” (emphasis supplied) 15. Further, the petitioner was arrested after the recovery of 5.92 kgs of charas, currency notes worth Rs.4,99,500/- and 12 bottles of IMFL. Thus, the petitioner was aware of the reasons why he was being arrested. It was laid down by three Judges of the Hon’ble Supreme Court in Madhu Limaye, In re, (1969) 1 SCC 292 : 1968 SCC OnLine SC 374, that if the accused is arrested red- handed, there is no need to explain the grounds of arrest. It was observed at page 298: “Lord Simonds gave an illustration of the circumstances where the accused must know why he is being arrested. “There is no need to explain the reasons for arrest if the arrested man is caught red-handed and the crime is patent to high Heaven.” 16. It was observed at page 298: “Lord Simonds gave an illustration of the circumstances where the accused must know why he is being arrested. “There is no need to explain the reasons for arrest if the arrested man is caught red-handed and the crime is patent to high Heaven.” 16. It was held in Balbir Kaur v. State of Punjab, (2009) 15 SCC 795 : (2010) 3 SCC (Cri) 997: 2009 SCC OnLine SC 1258, that where the accused knew that she was being searched for the contraband, the plea taken by her regarding non-communication of the reason of arrest is technical in nature. It was observed at page 802: “20. In view of the concurrent findings of the trial court and as also the High Court holding that the appellant was in conscious possession of the said contraband goods, the allegation of non-disclosure of the purpose of the search and the grounds of arrest to her is of a technical nature and without there being any material force in them. The appellant herself knew that she was being searched for possession of contraband goods, and therefore, she had also sought protection as provided under Sections 52 and 57 of the NDPS Act. 21. The appellant was being searched and arrested on ac- count of possession of contraband goods. The violation of the provisions of the NDPS Act was clearly known to her. The allegation that she herself asked for such protection instead of prosecution, giving her the option to be searched before a gazetted officer, as required under the law, would not in any manner adversely affect her conviction and order of sentence passed by both the courts below. No preju- dice could be shown by the appellant against the DSP, who was a gazetted officer and the lady officer present at the time of the search.” 17. The matter is pending before the Hon’ble Supreme Court in Mihir Rajesh Shah vs State of Maharashtra, SLP (Crl.) 17132 of 2024, and nothing more is required to be said regarding this aspect at this stage. 18. This Court had earlier held that the petitioner was found, prima facie, in possession of the charas, currency notes and the liquor. The burden was upon the accused/petitioner to show that his possession was not conscious as per Sections 35 and 54 of the ND&PS Act. 18. This Court had earlier held that the petitioner was found, prima facie, in possession of the charas, currency notes and the liquor. The burden was upon the accused/petitioner to show that his possession was not conscious as per Sections 35 and 54 of the ND&PS Act. The rigours of Section 37 of the ND&PS Act apply to the present case. The petitioner was unable to satisfy the twin conditions laid down in Section 37 of the NDPS Act, and he was not entitled to bail. These findings cannot be set aside while deciding a subsequent bail petition. 19. 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 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. 20. No other point was urged. 21. The petitioner has failed to make out any change in the circumstances, and he is not entitled to bail. Consequently, the present petition fails and it is dismissed, so also pending miscellaneous application, if any. 22. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case.