9.3.2026 vs Of on 19 March, 2026

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    Himachal Pradesh High Court

    Reserved On: 9.3.2026 vs Of on 19 March, 2026

                                                                                        2026:HHC:7728
    
    
    
         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
    
                                                  Cr. MP(M) No. 2873 of 2025
    
    
    
    
                                                                                       .
                                                  Reserved on: 9.3.2026
    
    
    
    
    
                                                  Date of Decision: 19.3.2026.
    
    
    
    
    
        Sanju                                                               .... Petitioner
                                         Versus
    
    
    
    
                                                         of
        State of HP                                                         .... Respondent
    
    
        Coram                  rt
        Hon'ble Mr Justice Rakesh Kainthla, Judge.
        Whether approved for reporting?1                   No.
    
        For the Petitioner                          :      Mr Sohail Khan, Advocate,
                                                           Legal Aid Counsel.
        For the Respondent/State                    :      Mr     Jitender   Sharma,
    
    
    
                                                           Additional Advocate General.
    
        Rakesh Kainthla, Judge
    

    The petitioner has filed the present petition for

    seeking regular bail in FIR No. 15 of 2023, dated 3.3.2023,

    SPONSORED

    registered at the Police Station Sainj, District Kullu, H.P., for the

    commission of offences punishable under Sections 20 and 25 of

    the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS

    Act).

    1

    Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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    2. It has been asserted that, as per the prosecution, the

    police had set up a naka at Dhaman Pul, Sainj. The police

    .

    intercepted the petitioner’s vehicle bearing registration No. HP-

    01K-7535 and recovered 2.603 kilograms of charas. The police

    arrested the petitioner. These allegations are false. The

    prosecution has cited 26 witnesses, out of whom 09 have been

    of
    examined. The petitioner is a taxi driver and the family’s sole

    earner. The petitioner has been behind bars since 3.3.2023, and
    rt
    his right to a speedy trial is being violated. 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 had set up a Naka near Dhaman bridge

    on 2.3.2023 at 9.45 PM. They stopped the vehicle bearing

    registration No. HP-01K-7535 at 10.15 PM. The driver identified

    himself as Sanju (the present petitioner). He tried to move a bag

    with his feet. The police became suspicious and searched the

    vehicle in the presence of two independent witnesses. The police

    recovered 2.603 kilograms of charas during the search. As per the

    report of analysis, the exhibit was found to be charas, having

    30.14% w/w resin in it. The statements of 09 out of 26 witnesses

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    have been recorded. The matter is listed for prosecution evidence

    on 20.4.2026. Hence, the status report.

    .

    4. I have heard Mr Sohail Khan, Advocate, learned Legal

    Aid Counsel, for the petitioner and Mr Jitender Sharma, learned

    Additional Advocate General, for the respondent/State.

    of

    5. Mr Sohail Khan, Advocate, learned Legal Aid Counsel

    for the petitioner, submitted that the petitioner is innocent and
    rt
    that he was falsely implicated. The prosecution has failed to

    complete evidence despite the lapse of three years, which

    violates the petitioner’s right to a speedy trial. Therefore, he

    prayed that the present petition be allowed and the petitioner be

    released on bail. He relied upon the judgment of Rabi Prakash Vs.

    State of Odisha 2023 LiveLaw (SC) 533 in support of his

    submission.

    6. Mr Jitender Sharma, learned Additional Advocate

    General for the respondent/State, submitted that the prosecution

    has examined nine witnesses and the matter is listed for

    recording the statements of witnesses on 20.4.2026. There is no

    delay in the progress of the trial. Hence, he prayed that the

    present petition be dismissed.

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    7. I have given considerable thought to the submissions

    made at the bar and have gone through the records carefully.

    .

    8. The parameters for granting bail were considered by

    the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC

    314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:

    of

    (i) Broad principles for the grant of bail

    56. InGudikantiNarasimhulu v. High Court of A.P., (1978) 1
    SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while
    elaborating on the content of Article 21 of the Constitution
    rt
    of India in the context of personal liberty of a person
    under trial, has laid down the key factors that should be

    considered while granting bail, which are extracted as
    under: (SCC p. 244, paras 7-9)
    “7. It is thus obvious that the nature of the charge is the
    vital factor, and the nature of the evidence is also

    pertinent. The punishment to which the party may be
    liable, if convicted or a conviction is confirmed, also
    bears upon the issue.

    8. Another relevant factor is whether the course of justice

    would be thwarted by him who seeks the benignant
    jurisdiction of the Court to be freed for the time being.

    [Patrick Devlin, “The Criminal Prosecution in England”

    (Oxford University Press, London 1960) p. 75 —
    Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

    9. Thus, the legal principles and practice validate the Court
    considering the likelihood of the applicant interfering with
    witnesses for the prosecution or otherwise polluting the
    process of justice. It is not only traditional but rational, in
    this context, to enquire into the antecedents of a man who
    is applying for bail to find whether he has a bad record,
    particularly a record which suggests that he is likely to
    commit serious offences while on bail. In regard to
    habituals, it is part of criminological history that a

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    thoughtless bail order has enabled the bailee to exploit the
    opportunity to inflict further crimes on the members of
    society. Bail discretion, on the basis of evidence about the
    criminal record of a defendant, is therefore not an exercise

    .

    in irrelevance.” (emphasis supplied)

    57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4
    SCC 280: 2001 SCC (Cri) 674, this Court highlighted various

    aspects that the courts should keep in mind while dealing
    with an application seeking bail. The same may be
    extracted as follows: (SCC pp. 284-85, para 8)

    of
    “8. The jurisdiction to grant bail has to be exercised on the
    basis of well-settled principles, having regard to the
    circumstances of each case and not in an arbitrary manner.
    While granting the bail, the court has to keep in mind the
    rt
    nature of accusations, the nature of evidence in support
    thereof, the severity of the punishment which conviction

    will entail, the character, behaviour, means and standing
    of the accused, circumstances which are peculiar to the
    accused, reasonable possibility of securing the presence of
    the accused at the trial, reasonable apprehension of the

    witnesses being tampered with, the larger interests of the
    public or State and similar other considerations. It has also
    to be kept in mind that for the purposes of granting the bail

    the legislature has used the words “reasonable grounds for
    believing” instead of “the evidence” which means the

    court dealing with the grant of bail can only satisfy it (sic
    itself) as to whether there is a genuine case against the

    accused and that the prosecution will be able to produce
    prima facie evidence in support of the charge.” (emphasis
    supplied)

    58. This Court in Ram Govind Upadhyay v. Sudarshan Singh,
    (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through
    Banerjee, J., emphasised that a court exercising discretion
    in matters of bail has to undertake the same judiciously. In
    highlighting that bail should not be granted as a matter of
    course, bereft of cogent reasoning, this Court observed as
    follows: (SCC p. 602, para 3)

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    “3. Grant of bail, though being a discretionary order, but,
    however, calls for the exercise of such a discretion in a
    judicious manner and not as a matter of course. An order
    for bail bereft of any cogent reason cannot be sustained.

    .

    Needless to record, however, that the grant of bail is
    dependent upon the contextual facts of the matter being
    dealt with by the court and facts do always vary from case

    to case. While the placement of the accused in society,
    though it may be considered by itself, cannot be a guiding
    factor in the matter of grant of bail, the same should

    of
    always be coupled with other circumstances warranting
    the grant of bail. The nature of the offence is one of the
    basic considerations for the grant of bail — the more
    heinous is the crime, the greater is the chance of rejection
    rt
    of the bail, though, however, dependent on the factual
    matrix of the matter.” (emphasis supplied)

    59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC
    528: 2004 SCC (Cri) 1977, this Court held that although it is
    established that a court considering a bail application
    cannot undertake a detailed examination of evidence and

    an elaborate discussion on the merits of the case, yet the
    court is required to indicate the prima facie reasons
    justifying the grant of bail.

    60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14
    SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that

    where a High Court has granted bail mechanically, the said
    order would suffer from the vice of non-application of

    mind, rendering it illegal. This Court held as under with
    regard to the circumstances under which an order
    granting bail may be set aside. In doing so, the factors
    which ought to have guided the Court’s decision to grant
    bail have also been detailed as under: (SCC p. 499, para 9)
    “9. … It is trite that this Court does not, normally, interfere
    with an order passed by the High Court granting or
    rejecting bail to the accused. However, it is equally
    incumbent upon the High Court to exercise its discretion
    judiciously, cautiously and strictly in compliance with the
    basic principles laid down in a plethora of decisions of this

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    Court on the point. It is well settled that, among other
    circumstances, the factors to be borne in mind while
    considering an application for bail are:

    .

    (i) whether there is any prima facie or reasonable

    ground to believe that the accused had committed the
    offence;

    (ii) nature and gravity of the accusation;

    (iii) severity of the punishment in the event of
    conviction;

    (iv) danger of the accused absconding or fleeing, if

    of
    released on bail;

    (v) character, behaviour, means, position and standing
    of the accused;

    rt

    (vi) likelihood of the offence being repeated;

    (vii) reasonable apprehension of the witnesses being

    influenced; and

    (viii) danger, of course, of justice being thwarted by
    grant of bail.” (emphasis supplied)
    xxxxxxx

    62. One of the judgments of this Court on the aspect of
    application of mind and requirement of judicious exercise
    of discretion in arriving at an order granting bail to the

    accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 :

    (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this

    Court, while setting aside an unreasoned and casual order
    (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856

    and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat
    2857) of the High Court granting bail to the accused,
    observed as follows: (Brijmani Devi v. Pappu Kumar, (2022)
    4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35)
    “35. While we are conscious of the fact that liberty of an
    individual is an invaluable right, at the same time while
    considering an application for bail courts cannot lose sight
    of the serious nature of the accusations against an accused
    and the facts that have a bearing in the case, particularly,
    when the accusations may not be false, frivolous or
    vexatious in nature but are supported by adequate material
    brought on record to enable a court to arrive at a prima

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    facie conclusion. While considering an application for the
    grant of bail, a prima facie conclusion must be supported
    by reasons and must be arrived at after having regard to
    the vital facts of the case brought on record. Due

    .

    consideration must be given to facts suggestive of the
    nature of crime, the criminal antecedents of the accused, if
    any, and the nature of punishment that would follow a

    conviction vis-à-vis the offence(s) alleged against an
    accused.” (emphasis supplied)

    9. Hon’ble Supreme Court held in State of Rajasthan v.

    of
    Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC

    261 that the normal rule is bail and not jail, except where the
    rt
    gravity of the crime or the heinousness of the offence suggests

    otherwise. It was observed at page 308:

    2. The basic rule may perhaps be tersely put as bail, not

    jail, except where there are circumstances suggestive of
    fleeing from justice or thwarting the course of justice or
    creating other troubles in the shape of repeating offences

    or intimidating witnesses and the like, by the petitioner
    who seeks enlargement on bail from the Court. We do not

    intend to be exhaustive but only illustrative.

    3. It is true that the gravity of the offence involved is likely

    to induce the petitioner to avoid the course of justice and
    must weigh with us when considering the question of jail.

    So also, the heinousness of the crime….”

    10. The present petition has to be decided as per the

    parameters laid down by the Hon’ble Supreme Court.

    11. It is undisputed that the petitioner had earlier filed a

    bail petition, which was registered as Cr.MP(M) No. 284 of 2025

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    and was dismissed on 7.4.2025. It was held in State of

    Maharashtra. 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
    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
    rt
    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.

    12. 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

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    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

    of
    said court will have to give specific reasons why in spite
    of such earlier rejection the subsequent bail application
    should be granted.”

    13. A similar view was taken in State of T.N. v. S.A. Raja,
    rt
    (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.”

    14. 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

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    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.”

    .

    15. 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

    of
    circumstances, which means a change in the facts or the law. It

    was observed:

    rt
    “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 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

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    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.”

    of

    16. Therefore, the present bail petition can only be

    considered on the basis of the change in the circumstances, and
    rt
    it is not permissible to review the order passed by the Court.

    17. It was submitted that there is a delay in the progress

    of the trial, and the petitioner’s right to a speedy trial is being

    violated. This submission cannot be accepted. A perusal of the

    earlier order shows that the prosecution had examined six

    witnesses, and now the statements of nine witnesses have been

    recorded. The matter is listed for recording the statement of

    prosecution witnesses on 20.4.2026; therefore, there is no delay

    in the progress of the trial. The petitioner has also not filed the

    certified copies of the order sheets to show the cause of the delay.

    Hence, the plea that the petitioner is entitled to bail because of

    the delay cannot be accepted.

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    18. The petitioner was found in possession of 2.603

    kilograms of cannabis, which is a huge quantity. 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

    of
    observed: –

    “17. The High Court then, on the strength of those
    rt
    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.

    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

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    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).”

    of

    19. A similar view was taken in Union of India v Namdeo

    Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025,
    rt
    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 inasmuch as 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
    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.”

    20. Therefore, it is impermissible to grant bail on the

    ground of delay alone when the petitioner has not satisfied the

    requirement of Section 37 of the NDPS Act.

    21. In Ravi Prakash, the prosecution had only examined

    one out of nineteen witnesses within four years. In the present

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    case, nine witnesses have been examined, and the cited judgment

    will not help the petitioner.

    .

    22. No other point was urged.

    23. In view of the above, the present petition fails, and it

    is dismissed.

    of

    24. The observation made herein before shall remain

    confined to the disposal of the petition and will have no bearing,
    rt
    whatsoever, on the merits of the case.

    (Rakesh Kainthla)
    Judge
    19th March, 2026
    (Chander)

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