2026:HHC:23196 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 804 of 2026 Date of Decision: 19.06.2025. Jai Bahadur ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the Petitioner : Mr Ajay Sipahiya, Advocate. For the Respondent/State : Mr Jitender K. Sharma, Additional Advocate General. Rakesh Kainthla, Judge (Oral) The petitioner has filed the present petition for regular bail in FIR No. 69 of 2024, dated 6.8.2024, registered at Police Station, Kandaghat, District Solan, H.P., for the commission of offences punishable under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). 2. It has been asserted that the petitioner was arrested on 06.08.2024 and has remained in custody since then. The police have filed the charge sheet, and no recovery is to be 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:231962026:HHC:23196 effected from the petitioner. The prosecution has cited 19 witnesses, and the trial is not likely to conclude soon. The petitioner had earlier filed a bail petition, which was registered as CrMP(M) No. 2495 of 2025 and was dismissed by this Court on 18.11.2025. The statements of witnesses have been recorded, and there are various contradictions in the statements of the witnesses. The bail cannot be denied to a person because he is a foreign national. He would abide by all the terms and conditions that the Court may impose. 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 were on a patrolling duty on 06.08.2024. They received secret information at 10:30 am that one person was transporting a huge quantity of opium. The information was credible. The police reduced the information into writing and sent it to the Supervisory Officer. The police apprehended one person, who identified himself as Jai Bahadur (the present petitioner), in the presence of independent witnesses. A search of his backpack was conducted, and 4.12 Kg of opium was found in it. The Police seized the opium and 3 2026:HHC:231962026:HHC:23196 arrested him. He revealed during the interrogation that he and Pradeep Chand had brought opium from Nepal. The Police analysed the call details record and found that the petitioner had stayed at Kullu with effect from 10.07.2024 till 28.07.2024. Pradeep Chand called the petitioner every hour on the date of the incident to know about his destination, and switched off his mobile phone after the petitioner was arrested. Police sent the opium to FSL. It was confirmed to be opium after analysis. The police conducted the investigation and filed a charge-sheet before the learned Special Judge, Solan, H.P. The statements of two witnesses have been recorded, and the matter is listed on 09.07.2026, for recording the statements of the prosecution witnesses. Hence, the status report. 4. I have heard Mr Ajay Sipahiya, learned counsel for the petitioner and Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent-State. 5. Mr Ajay Sipahiya, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The statements of the prosecution witnesses contradicted each other on material aspects. Hence, he prayed 4 2026:HHC:231962026:HHC:23196 that the present petition be allowed and the petitioner be released on bail. He has filed a tabulated chart of material contradictions in support of his submission. 6. Mr Jitender K. Sharma, learned Additional Advocate General for the respondent State, submitted that it is impermissible to appreciate the contradictions at this stage. The petitioner was found in possession of a commercial quantity of opium, and the rigours of Section 37 of the NDPS Act apply to the present case; the petitioner has not satisfied the twin conditions laid down under Section 37 of the NDPS Act. Therefore, he prayed that the present petition be dismissed. 7. I have given a 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, which was registered as Cr.MP(M) No. 2495 of 2025, and was dismissed by this Court on 18.11.2025. It was laid down in the State of Maharashtra. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that once a bail application has been 5 2026:HHC:231962026:HHC:23196 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. 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 6 2026:HHC:231962026:HHC:23196 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. 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. 7 2026:HHC:231962026:HHC:23196 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 that 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 applications need 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 8 2026:HHC:231962026:HHC:23196 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. This Court had earlier held that there was sufficient material to connect the petitioner to the commission of the crime, and the petitioner was unable to satisfy the twin conditions laid down under section 37 of the NDPS Act; hence, he was not entitled to bail. These considerations have not changed. 15. It was submitted that there are various contradictions in the statements of the witnesses. A tabulated chart was also prepared by the learned counsel showing the contradictions. This submission will not help the petitioner. It was laid down by the Delhi High Court in Dineet v. State (NCT of Delhi), 2025 SCC OnLine Del 8603, that it is impermissible for the bail Court to appreciate the evidence recorded during the trial while considering the bail. It was observed: 9 2026:HHC:231962026:HHC:23196 “17. Addressing Mr Mahajan's submissions, it is pertinent to note that nearly the entirety of the petitioner's case rests upon the assumption that this Court may enter into witness testimonies and evidence to determine contradictions and the hostility of witnesses at the stage of bail. 18. However, it is trite that the same is not within the power of this Court at the stage of bail, as laid down in Satish Jaggi v. State of Chhattisgarh (2007) 11 SCC 195: (2008) 1 SCC (Cri) 660, paragraphs 11 and 12 of which merit reproduction: “11. On the aforesaid reasoning, the learned Chief Justice thought it fit to grant bail. Mr. A.K. Ganguli, learned Senior Counsel appearing on behalf of the appellant complainant, Mr. Amarendra Sharan, learned ASG appearing on behalf of CBI and Mr. Rajiv Dutta, learned Senior Counsel appearing on behalf of the State of Chhattisgarh strenuously contended that having regard to the observations and findings of the learned Chief Justice as recorded above, it clearly shows that the learned Chief Justice while granting bail to the accused virtually decided the case on merit which amounts to acquitting the accused of the criminal charge levelled against him without trial. Per contra, Mr Vivek Tankha, learned Senior Counsel, contended that now the evidence is closed, so there is no question of the accused tampering with the prosecution witnesses or fleeing from justice. He further contended that now the arguments in the case have finally started, and the arguments of the prosecution are over, and only the defence is to give its reply. He, accordingly, contended that the bail granted by the learned Chief Justice need not be disturbed. 12. Normally, if the offence is non-bailable, bail can also be granted if the facts and circumstances so demand. We have already observed that in granting bail in a non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society were not at all 10 2026:HHC:231962026:HHC:23196 considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress, and if such findings are allowed to stand, it would seriously prejudice the prosecution's case. At the stage of granting bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of the credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.” 19. By virtue of the aforementioned paragraphs from the Hon'ble Supreme Court's decision in Satish Jaggi, it is evinced that this Court, at the stage of Bail, cannot look into the allegations of PW2 being a witness who has turned hostile, nor apply its mind to alleged contradictions in his statement under Section 161 of the CrPC when compared with his testimony in Court, as the same would amount to appreciation of the evidentiary value of his statement and testimony, and this is an exercise that is only to be conducted during the course of trial. 20. The same has been relied upon by the Hon'ble Supreme Court in the judgment of State of Karnataka v. Sri Darshan 2025 SCC OnLine SC 1702, with the following paragraphs of this decision reproduced for ready reference: “20.2.5. Further, such an approach of the High Court is contrary to the judicial precedents of this court, including Satish Jaggi v. State of Chhattisgarh (supra), Kanwar Singh Meena v. State of Rajasthan, wherein it was held that courts, while considering bail, should not assess the credibility of witnesses, as this function squarely lies within the domain of the trial Court. Thus, the impugned order of the High Court violates this principle by commenting on the delay in the witness statements and imputing a lack of credibility at this stage” (emphasis supplied) 11 2026:HHC:231962026:HHC:23196 ***** “20.3.6. In the present case, the High Court also proceeded to analyse and discount the credibility of certain prosecution witnesses and forensic material. It observed contradictions in the eyewitness statements concerning the overt acts of the accused (para 26). It expressed doubts about the prosecution's explanation for the delay in recording the statements of CW. 76 and CW. 91 (para 27). It questioned the timing of the doctor's supplementary opinion and weighed its evidentiary worth (para 31). As already pointed out, the credibility or reliability of witnesses is a matter for the trial Court to determine after full-fledged cross-examination. It is a trite law that statements recorded under section 161 Cr. P.C. are not substantive, and their evidentiary value can only be determined after cross-examination during trial. Any opinion rendered at the bail stage risks prejudging the outcome of the trial and must be avoided. Thus, the court's assessment of these aspects amounts to a premature appreciation of the probative value of prosecution evidence.” (emphasis supplied) ***** “24. On a cumulative analysis, it is evident that the order of the High Court suffers from serious legal infirmities. The order fails to record any special or cogent reasons for granting bail in a case involving charges under Sections 302, 120B, and 34 IPC. Instead, it reflects a mechanical exercise of discretion, marked by significant omissions of legally relevant facts. Moreover, the High Court undertook an extensive examination of witness statements at the pre-trial stage, highlighting alleged contradictions and delays - issues that are inherently matters for the trial Court to assess through cross- examination. The trial Court alone is the appropriate forum to evaluate the credibility and reliability of witnesses. Granting bail in such a serious case, without adequate consideration of the nature and gravity of the offence, the accused's role, and the tangible risk of interference with the trial, amounts to a perverse and wholly 12 2026:HHC:231962026:HHC:23196 unwarranted exercise of discretion. The well-founded allegations of witness intimidation, coupled with compelling forensic and circumstantial evidence, further reinforce the necessity for cancellation of bail. Consequently, the liberty granted under the impugned order poses a real and imminent threat to the fair administration of justice and risks derailing the trial process. In light of these circumstances, this Court is satisfied that the present case calls for the exercise of its extraordinary jurisdiction under Section 439(2) Cr. P.C.” (emphasis supplied) 21. Drawing inspiration from the judgment in Darshan, the hostility of a witness cannot be interpreted as an automatic declaration of the prosecution's case as unconvincing, and thereby, in essence, result in the conduction of a mini-trial at the stage of bail and return findings upon the ex facie merit of the accused's innocence/guilt. 16. 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 be loath to entertain 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 13 2026:HHC:231962026:HHC:23196 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 exercising bail jurisdiction cannot appreciate the evidence while considering the bail application. 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 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 14 2026:HHC:231962026:HHC:23196 prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence. 18. The findings recorded by the Court cannot be reviewed by this Court while exercising the jurisdiction to grant a subsequent bail petition. 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. Successive bail applications are indeed permissible 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. 19. Therefore, the petitioner cannot be released on bail because of the contradictions in the statements of the prosecution's witnesses. 20. It was submitted that the prosecution has failed to complete the evidence, and the petitioner’s right to a speedy 15 2026:HHC:231962026:HHC:23196 trial is being violated. This submission will not help the petitioner. A perusal of the earlier order shows that the matter was listed for consideration of charge on 06.11.2025, which means that the charges were not framed till November, 2025. The copies of the order sheets have not been filed to demonstrate that the delay is attributable to the prosecution or the Court. The statements of two witnesses have been recorded in the matter, which is now listed for recording the statements of the witnesses on 09.07.2026. It was laid down by the Hon’ble Supreme Court in Union of India vs. Vijin K. Varghese 2025:INSC:1316 that bail cannot be granted on the ground of prolonged incarceration without satisfying the twin conditions laid down under Section 37 of the NDPS Act. It was observed: - “17. The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding is not a casual observation. It is the statutory threshold under Section 37(1)(b)(ii), which would disentitle the discretionary relief and grant of bail must necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the prosecution’s assertions of operative control and antecedent involvement, risks trenching upon the appreciation of evidence which would be in the domain of the trial court at first instance. 16 2026:HHC:231962026:HHC:23196 18. This Court ordinarily shows deference to the discretion exercised by the High Court while considering the grant of bail. However, offences involving a commercial quantity of narcotic drugs stand on a distinct statutory footing. Section 37 enacts a specific embargo on the grant of bail and obligates the Court to record satisfaction on the twin requirements noticed above, in addition to the ordinary tests under the Code of Criminal Procedure. 19. In the present case, the High Court has not undertaken the analysis of those twin requirements with reference to the material placed by the prosecution. The orders dated 22.01.2025 and 12.03.2025 do not advert to the allegation regarding the respondent’s prior involvement in a seizure of narcotic drugs and psychotropic substances only days prior to the seizure forming the subject matter of the present complaint, nor do they engage with the prosecution’s assertion as to the respondent’s role in arranging, importing, clearing and supervising the consignments. The omission to consider these factors bears directly upon the statutory satisfaction required by Section 37(1)(b).” 21. A similar view was taken in Union of India v Namdeo Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025, wherein it was observed: “11. In the present case, this Court finds that though the Respondent-accused was in custody for one year, four months, and charges have not been framed, yet the allegations are serious since not only is the recovery much in excess of the commercial quantity, but the Respondent-accused allegedly got the cavities ingeniously fabricated below the trailer to conceal the contraband. 12. Prima facie, this Court is of the opinion that the Respondent-accused is involved in drug trafficking in an 17 2026:HHC:231962026:HHC:23196 organised manner. Consequently, no case for dispensing with the mandatory requirement of Section 37 of the NDPS Act is made out in the present matter.” 22 Therefore, it is impermissible to grant bail on the ground of delay alone when the petitioner had not satisfied the requirement of Section 37 of the NDPS Act. 23. No other point was urged. 24. In view of the above, the present petition fails, and it is dismissed. 25. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 19th June, 2026 (ravinder)