Himachal Pradesh High Court
Reserved On: 5.3.2026 vs State Of Hp on 12 March, 2026
2026:HHC:6937
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 77 of 2026
Reserved on: 5.3.2026
Date of Decision: 12.3.2026.
Shubham Chaudhary .... Petitioner
Versus
State of HP .... Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr N.K. Thakur, Senior Advocate,
with Mr Karranveer Singh,
Advocate.
For the Respondent/State: Mr Ajit Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in FIR No. 43 of 2025, dated 9.3.2025,
registered at Police Station Dharamshala, District Kangra, H.P.,
for the commission of an offence punishable under Section 21 of
the Narcotic Drugs and Psychotropic Substances (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 were present on Charan Khadd, Badol. A vehicle came to
the spot, and the driver increased the speed of the vehicle after
seeing the police party. The police chased the vehicle and
apprehended it near Shukla Nursing Home. The driver disclosed
his name as Shubham Chaudhary (present petitioner). The police
recovered 12 grams of heroin after searching the vehicle. These
allegations are false. No recovery was made from the petitioner.
The petitioner has been in custody since 9.3.2025. The
prosecution has failed to complete the trial, which violates the
right to a speedy trial. Hence, it is 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 patrolling duty on 09.03.2025. A
vehicle crossed the police vehicle at Charanpul. The driver sped
his vehicle after seeking the vehicle. The police became
suspicious. The vehicle did not have a number plate on the rear.
The police followed the vehicle and intercepted it at a distance of
200 meters from Shukla Nursing Home. Sonu and Rajinder
Singh were associated as independent witnesses. The driver
identified himself as Shubham Chaudhary (present petitioner).
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The police searched the vehicle and found a transparent
polythene packet containing beige and white granulated powder.
The police checked it and found it to be heroin. It was weighed,
and its weight was found to be twelve grams. The police seized
the heroin and arrested the petitioner. The heroin was sent to
SFSL, Junga, and, as per the report of analysis, it was confirmed
to be a sample of Diacetylmorphine (heroin). F.I.R. No. 100 of
2022 dated 23.11.2022 is pending against the petitioner for the
commission of offences punishable under Sections 21, 25 and 29
of the NDPS Act before the learned Additional Sessions Judge-II,
Dharamshala, District Kangra, H.P. The charge sheet has been
filed before the Court. Hence, the status report.
4. I have heard Mr N.K. Thakur, learned Senior Counsel,
assisted by Mr Karanveer Singh, learned counsel for the
petitioner and Mr Ajit Sharma, learned Deputy Advocate General
for the respondent/State.
5. Mr N.K. Thakur, learned Senior Counsel for the
petitioner, submitted that the petitioner is innocent and that he
was falsely implicated. The prosecution’s story is inherently
improbable. The petitioner has remained behind bars for about
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one year, and the prosecution has failed to complete the
evidence. A charge sheet has been filed before the Court, and no
fruitful purpose shall be served by detaining the petitioner in
custody. Hence, he 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 any change in
circumstances. The petitioner has not shown any change in
circumstances. Therefore, he prayed that the present petition be
dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. 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:
(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
of India in the context of personal liberty of a person
5
2026:HHC:6937under 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
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)
“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
nature of accusations, the nature of evidence in support
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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)
“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
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
of the bail, though, however, dependent on the factual
matrix of the matter.” (emphasis supplied)
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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
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
released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
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(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
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-Ã -vis the offence(s) alleged against an
accused.” (emphasis supplied)
9. Hon’ble Supreme Court held in State of Rajasthan v.
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
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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. 1621 of 2025
and was dismissed on 09.10.2025. 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 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
10
2026:HHC:6937little 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
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.”
13. A similar view was taken in State of T.N. v. S.A. Raja,
(2005) 8 SCC 380, wherein it was observed:
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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
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
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
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2026:HHC:6937for 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
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.”
16. Therefore, the present bail petition can only be
considered based on the change in circumstances, and it is not
permissible to review the order passed by the Court.
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17. The petitioner submitted that the prosecution has
failed to complete the evidence despite the lapse of one year, and
considering the quantity of heroin, further detention of the
petitioner is not justified. This submission has some force. The
status report mentions that the petitioner was found in
possession of 12 grams of heroin, which is an intermediate
quantity. A person possessing 250 grams of heroin can be
punished with imprisonment for 10 years. If the principle of
proportionality is applied, the petitioner has undergone a
substantial part of the imprisonment that can be awarded to him
in case of his conviction.
18. The status report does not mention the status of the
trial, the number of witnesses cited by the prosecution or the
number of witnesses examined. It does not provide any timeline
for concluding the trial. Therefore, it is not known whether the
trial will be concluded expeditiously or not. Keeping in view the
quantity of heroin, further detention of the petitioner is not
justified.
19. It was laid down by the Hon’ble Supreme Court in
Javed Gulam Nabi Shaikh v. State of Maharashtra (2024) 9 SCC 813:
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2024 SCC OnLine SC 1693 that when the State or any prosecuting
agency including the Court concerned has no wherewithal to
provide the right to speedy trial of the accused, the bail should
not be opposed on the ground that crime committed is serious. It
was observed at page 820:
17. If the State or any prosecuting agency, including the
court concerned, has no wherewithal to provide or protect
the fundamental right of an accused to have a speedy trial
as enshrined under Article 21 of the Constitution, then the
State or any other prosecuting agency should not oppose
the plea for bail on the ground that the crime committed is
serious. Article 21 of the Constitution applies irrespective
of the nature of the crime.
18. We may hasten to add that the petitioner is still an
accused, not a convict. The overarching postulate of
criminal jurisprudence that an accused is presumed to be
innocent until proven guilty cannot be brushed aside
lightly, however stringent the penal law may be.
19. We are convinced that the manner in which the
prosecuting agency, as well as the Court, have proceeded,
the right of the accused to have a speedy trial could be said
to have been infringed, thereby violating Article 21 of the
Constitution.
20. It was held in Ajay Kumar Choudhary v. Union of India,
(2015) 7 SCC 291: (2015) 2 SCC (L&S) 455: 2015 SCC OnLine SC 127
that the right to a speedy trial is a fundamental right of the
accused. It was observed at page 298:
“13. Article 12 of the Universal Declaration of Human
Rights, 1948, assures that:
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“12. No one shall be subjected to arbitrary
interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection
of the law against such interference or attacks.”
14. More recently, the European Convention on Human
Rights in Article 6(1) promises that:
“6. (1) In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing
within a reasonable time….”
And in its second sub-article, that:
“6. (2) Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
15. The Supreme Court of the United States struck down
the use of nolle prosequi, an indefinite but ominous and
omnipresent postponement of civil or criminal
prosecution in Klopfer v. North Carolina [18 L Ed 2d 1: 386
US 213 (1967)].
16. In Kartar Singh v. State of Punjab [(1994) 3 SCC 569: 1994
SCC (Cri) 899] the Constitution Bench of this Court
unequivocally construed the right of speedy trial as a
fundamental right, and we can do no better than extract
these paragraphs from that celebrated decision: (SCC pp.
638-39, paras 86-87)
“86. The concept of speedy trial is read into Article
21 as an essential part of the fundamental right to
life and liberty guaranteed and preserved under our
Constitution. The right to speedy trial begins with
the actual restraint imposed by arrest and
consequent incarceration and continues at all
stages, namely, the stage of the investigation,
inquiry, trial, appeal and revision so that any
possible prejudice that may result from the
impermissible and avoidable delay from the time of
the commission of the offence till it consummates
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into a finality, can be averted. In this context, it may
be noted that the constitutional guarantee of a
speedy trial is properly reflected in Section 309 of
the Code of Criminal Procedure.
87. This Court in Hussainara Khatoon (1) v. State of
Bihar [(1980) 1 SCC 81: 1980 SCC (Cri) 23], while dealing
with Article 21 of the Constitution of India, has
observed thus: (SCC p. 89, para 5)
‘5. … No procedure which does not ensure a
reasonably quick trial can be regarded as
“reasonable, fair or just” and it would fall foul of
Article 21. There can, therefore, be no doubt that a
speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of
the fundamental right to life and liberty enshrined
in Article 21. The question which would, however,
arise is as to what would be the consequence if a
person accused of an offence is denied a speedy trial
and is sought to be deprived of his liberty by
imprisonment as a result of a long-delayed trial in
violation of his fundamental right under Article 21.
Would he be entitled to be released unconditionally,
freed from the charge levelled against him on the
ground that trying him after an unduly long period
of time and convicting him after such a trial would
constitute a violation of his fundamental right
under Article 21?”
17. The legal expectation of expedition and diligence being
present at every stage of a criminal trial and a fortiori in
departmental enquiries has been emphasised by this Court
on numerous occasions. The Constitution Bench in Abdul
Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225: 1992 SCC
(Cri) 93] underscored that this right to speedy trial is
implicit in Article 21 of the Constitution and is also
reflected in Section 309 of the Code of Criminal Procedure,
1973; that it encompasses all stages viz. investigation,
inquiry, trial, appeal, revision and retrial; that the burden
lies on the prosecution to justify and explain the delay;
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that the Court must engage in a balancing test to
determine whether this right had been denied in the
particular case before it.”
21. It was held in the Shaheen Welfare Association. v. Union
of India, (1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot
be kept behind bars when there is no prospect of trial being
concluded expeditiously. It was observed at page 621:
“8. It is in this context that it has become necessary to
grant some relief to those persons who have been deprived
of their personal liberty for a considerable length of time
without any prospect of the trial being concluded in the
near future. Undoubtedly, the safety of the community
and the nation needs to be safeguarded, looking to the
nature of the offences these undertrials have been charged
with. But the ultimate justification for such deprivation of
liberty pending trial can only be their being found guilty of
the offences for which they have been charged. If such a
finding is not likely to be arrived at within a reasonable
time, some relief becomes necessary.”
22. Similarly, it was laid down by the Hon’ble Supreme
Court in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321: (2022) 3
SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be
subjected to unending detention pending trial. It was observed at
page 335:
“40. Having held so, we cannot be oblivious to what has
been urged on behalf of the respondent-accused that
cancellation of bail by this Court is likely to be construed
as an indefinite foreclosure of his right to seek bail. It is
not necessary to dwell upon the wealth of case law which,
18
2026:HHC:6937regardless of the stringent provisions in a penal law or the
gravity of the offence, has time and again recognised the
legitimacy of seeking liberty from incarceration. To put it
differently, no accused can be subjected to unending
detention pending trial, especially when the law presumes
him to be innocent until proven guilty. Even where
statutory provisions expressly bar the grant of bail, such
as in cases under the Unlawful Activities (Prevention) Act,
1967, this Court has expressly ruled that after a reasonably
long period of incarceration, or for any other valid reason,
such stringent provisions will melt down, and cannot be
measured over and above the right of liberty guaranteed
under Article 21 of the Constitution (see Union of
India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3
SCC 713, paras 15 and 17] ).”
23. It was laid down in Mohd. Muslim v. State (NCT of
Delhi), (2023) 18 SCC 166: 2023 SCC OnLine SC 352, that the right to
a speedy trial is a constitutional right of an accused. The right of
bail is curtailed on the premise that the trial would be concluded
expeditiously. It was observed at page 174: –
13. When provisions of law curtail the right of an accused
to secure bail, and correspondingly fetter judicial
discretion (like Section 37 of the NDPS Act, in the present
case), this Court has upheld them for conflating two
competing values i.e. the right of the accused to enjoy
freedom, based on the presumption of innocence, and
societal interest — as observed in Vaman Narain
Ghiya v. State of Rajasthan [Vaman Narain Ghiya v. State of
Rajasthan, (2009) 2 SCC 281: (2009) 1 SCC (Cri) 745: (2008)
17 SCR 369] (“the concept of bail emerges from the conflict
between the police power to restrict liberty of a man who is
alleged to have committed a crime, and presumption of
innocence in favour of the alleged criminal….”). They are, at
the same time, upheld on the condition that the trial is
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2026:HHC:6937concluded expeditiously. The Constitution Bench in Kartar
Singh v. State of Punjab [Kartar Singh v. State of Punjab,
(1994) 3 SCC 569: 1994 SCC (Cri) 899: (1994) 2 SCR 375]
made observations to this effect. In the Shaheen Welfare
Association. v. Union of India [Shaheen Welfare
Assn. v. Union of India, (1996) 2 SCC 616: 1996 SCC (Cri) 366:
(1996) 2 SCR 1123] again, this Court expressed the same
sentiment, namely, that when stringent provisions are
enacted, curtailing the provisions of bail, and restricting
judicial discretion, it is on the basis that investigation and
trials would be concluded swiftly. The Court said that
parliamentary intervention is based on: (Shaheen Welfare
case [Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC
616: 1996 SCC (Cri) 366: (1996) 2 SCR 1123], SCC p. 624, para
17)
“17. … a conscious decision has been taken by the
legislature to sacrifice to some extent, the personal
liberty of an undertrial accused for the sake of
protecting the community and the nation against
terrorist and disruptive activities or other activities
harmful to society, it is all the more necessary that
investigation of such crimes is done efficiently and an
adequate number of Designated Courts are set up to
bring to book persons accused of such serious crimes.
This is the only way in which society can be protected
against harmful activities. This would also ensure that
persons ultimately found innocent are not
unnecessarily kept in jail for long periods.”
24. The Court highlighted the effects of pre-trial
detention and the importance of a speedy trial as under at page
178:
“23. Before parting, it would be important to reflect that
laws which impose stringent conditions for the grant of
bail may be necessary in the public interest; yet, if trials
are not concluded in time, the injustice wreaked on the
20
2026:HHC:6937individual is immeasurable. Jails are overcrowded, and
their living conditions, more often than not, are appalling.
According to the Union Home Ministry’s response to
Parliament, the National Crime Records Bureau had
recorded that as on 31-12-2021, over 5,54,034 prisoners
were lodged in jails against a total capacity of 4,25,069
prisoners in the country [ National Crime Records Bureau,
Prison Statistics in India
<https://ncrb.gov.in/sites/default/files/PSI-2021/Executiv
e_ncrb_Summary-2021.pdf>]. Of these, 1,22,852 were
convicts; the rest, 4,27,165, were undertrials.
24. The danger of unjust imprisonment is that inmates are
at risk of “prisonisation”, a term described by the Kerala
High Court in A Convict Prisoner v. State [A Convict
Prisoner v. State, 1993 SCC OnLine Ker 127: 1993 Cri LJ 3242]
as “a radical transformation” whereby the prisoner: (SCC
OnLine Ker para 13)
“13. … loses his identity. He is known by a number. He
loses personal possessions. He has no personal
relationships. Psychological problems result from loss
of freedom, status, possessions, dignity and autonomy
of personal life. The inmate culture of prison turns out
to be dreadful. The prisoner becomes hostile by
ordinary standards. Self-perception changes.”
25. There is a further danger of the prisoner turning to
crime, “as crime not only turns admirable, but the more
professional the crime, more honour is paid to the criminal”
[ Working Papers – Group on Prisons & Borstals – 1966
U.K.] (also see Donald Clemmer’s “The Prison Community”
published in 1940 [ Donald Clemmer, The Prison
Community (1968) Holt, Rinehart & Winston, which is
referred to in Tomasz Sobecki, “Donald Clemmer’s
Concept of Prisonisation”, available
at:<https://www.tkp.edu.pl/wpcontent/uploads/2020/12/
Sobecki_sklad.pdf> (accessed on 23-3-2023).] ).
Incarceration has further deleterious effects, where the
accused belongs to the weakest economic strata:
immediate loss of livelihood, and in several cases,
21
2026:HHC:6937scattering of families as well as loss of family bonds and
alienation from society. The courts, therefore, have to be
sensitive to these aspects (because in the event of an
acquittal, the loss to the accused is irreparable), and
ensure that trials–especially in cases where special laws
enact stringent provisions- are taken up and concluded
speedily.”
25. It was laid down by the Hon’ble Supreme Court in
Javed Gulam Nabi Shaikh (supra) that the right to speedy trial of
the offenders facing criminal charges is an important facet of
Article 21 of the Constitution of India, and inordinate delay in the
conclusion of the trial entitles the accused to the grant of bail. It
was observed at page 817: –
“10. Long back, in Hussainara Khatoon (1) v. State of
Bihar [Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC
81: 1980 SCC (Cri) 23], this Court had declared that the
right to speedy trial of offenders facing criminal charges is
“implicit in the broad sweep and content of Article 21 as
interpreted by this Court”. Remarking that a valid
procedure under Article 21 is one which contains a
procedure that is “reasonable, fair and just”, it was held
that: (SCC p. 89, para 5)
“5. … Now obviously procedure prescribed by law for
depriving a person of liberty cannot be “reasonable,
fair or just” unless that procedure ensures a speedy
trial for determination of the guilt of such person. No
procedure which does not ensure a reasonably quick
trial can be regarded as “reasonable, fair or just” and it
would fall foul of Article 21. There can, therefore, be no
doubt that a speedy trial, and by speedy trial we mean
reasonably expeditious trial, is an integral and
essential part of the fundamental right to life and
22
2026:HHC:6937liberty enshrined in Article 21. The question which
would, however, arise is as to what would be the
consequence if a person accused of an offence is denied
a speedy trial and is sought to be deprived of his liberty
by imprisonment as a result of a long-delayed trial in
violation of his fundamental right under Article 21.”
11. The aforesaid observations have resonated, time and
again, in several judgments, such as Kadra
Pahadiya v. State of Bihar [Kadra Pahadiya v. State of Bihar,
(1981) 3 SCC 671: 1981 SCC (Cri) 791] and Abdul Rehman
Antulay v. R.S. Nayak [Abdul Rehman Antulay v. R.S. Nayak,
(1992) 1 SCC 225: 1992 SCC (Cri) 93]. In the latter, the court
re-emphasised the right to a speedy trial and further held
that an accused, facing a prolonged trial, has no option:
(Abdul Rehman Antulay case [Abdul Rehman Antulay v. R.S.
Nayak, (1992) 1 SCC 225: 1992 SCC (Cri) 93], SCC p. 269,
para 84)
“84. … The State or complainant prosecutes him. It is,
thus, the obligation of the State or the complainant, as
the case may be, to proceed with the case with
reasonable promptitude. Particularly, in this country,
where the large majority of accused come from poorer
and weaker sections of society, not versed in the ways
of law, where they do not often get competent legal
advice, the application of the said rule is wholly
inadvisable. Of course, in a given case, if an accused
demands a speedy trial and yet he is not given one, it
may be a relevant factor in his favour. But we cannot
disentitle an accused from complaining of
infringement of his right to a speedy trial on the
ground that he did not ask for or insist upon a speedy
trial.”
26. This position was reiterated in Balwinder Singh v.
State of Punjab, 2024 SCC OnLine SC 4354, wherein it was
observed:
23
2026:HHC:6937
7. An accused has a right to a fair trial, and while a hurried
trial is frowned upon as it may not give sufficient time to
prepare for the defence, an inordinate delay in the
conclusion of the trial would infringe the right of an
accused guaranteed under Article 21 of the Constitution.
8. It is not for nothing that the Author Oscar Wilde, in
“The Ballad of Reading Gaol”, wrote the following
poignant lines while being incarcerated:
“I know not whether Laws be right,
Or whether Laws be wrong;
All that we know who be in jail
Is that the wall is strong;
And that each day is like a year,
A year whose days are long.”
27. It was held in Athar Parwez v. Union of India, (2024) 20
SCC 57: 2024 SCC OnLine SC 3762 that long incarceration and the
delay in the conclusion of the trial will entitle the accused to bail.
It was observed at page 63:
19. Long incarceration and the unlikely likelihood of the
trial being completed in the near future have also been
taken as a ground for exercising its constitutional role by
the constitutional courts to grant bail on violation of
Article 21 of the Constitution of India, which guarantees
trial be concluded within a reasonable time. Gross delay in
conclusion of the trial would justify such invocation,
leading to a conclusion of violation of Part III of the
Constitution of India, which may be taken as a ground to
release an undertrial on bail.
*****
21. At the initial stage, the legislative policy needs to be
appreciated and followed by the courts. Keeping the
statutory provisions in mind, but with the passage of time,
24
2026:HHC:6937the effect of that statutory provision would, in fact, have
to be diluted, giving way to the mandate of Part III of the
Constitution, where the accused, as of now, is not a
convict and is facing the charges. Constitutional right of
speedy trial in such circumstances will have precedence
over the bar/strict provisions of the statute and cannot be
made the sole reason for denial of bail. Therefore, the
period of incarceration of an accused could also be a
relevant factor to be considered by the constitutional
courts, not to be merely governed by the statutory
provisions.
28. It was laid down by the Hon’ble Supreme Court in
Tapas Kumar Palit v. State of Chhattisgarh, 2025 SCC OnLine SC 322
that the accused has a right to an expeditious trial. It was
observed:
10. However, many times we have made ourselves very
clear that howsoever serious a crime may be, the accused
has a fundamental right of speedy trial as enshrined in
Article 21 of the Constitution.
29. Hence, the petitioner is entitled to bail because of the
violation of his right to a speedy trial.
30. It was submitted that the petitioner has criminal
antecedents and he is not entitled to bail on this consideration.
This submission will not help the State. It was laid down by the
Hon’ble Supreme Court in Ayub Khan v. State of Rajasthan, 2024
SCC OnLine SC 3763: 2024:INSC:994 that the criminal antecedents
25
2026:HHC:6937
may not be a reason to deny bail to the accused in case of long
incarceration. It was observed:
“10. The presence of the antecedents of the accused is only
one of the several considerations for deciding the prayer
for bail made by him. In a given case, if the accused makes
out a strong prima facie case, depending upon the fact
situation and period of incarceration, the presence of
antecedents may not be a ground to deny bail. There may
be a case where a Court can grant bail only on the grounds
of long incarceration. The presence of antecedents may
not be relevant in such a case. In a given case, the Court
may grant default bail. Again, the antecedents of the
accused are irrelevant in such a case. Thus, depending
upon the peculiar facts, the Court can grant bail
notwithstanding the existence of the antecedents.”
31. In view of the above, the present petition is allowed,
and the petitioner is ordered to be released on bail, subject to his
furnishing bail bonds in the sum of ₹1,00,000/- with one surety
in the like amount to the satisfaction of the learned Trial Court.
While on bail, the petitioner will abide by the following
conditions: –
(I) The petitioner will not intimidate the witnesses, nor
will he influence any evidence in any manner
whatsoever.
(II) The petitioner shall attend the trial on each and
every hearing and will not seek unnecessary
adjournments.
(III) The petitioner will not leave the present address for
a continuous period of seven days without
furnishing the address of the intended visit to the
26
2026:HHC:6937SHO concerned, the Police Station concerned and
the Trial Court.
(IV) The petitioner will surrender his passport, if any, to
the Court; and
(V) The petitioner will furnish his mobile number and
social media contact to the Police and the Court and
will abide by the summons/notices received from
the Police/Court through SMS/WhatsApp/Social
Media Account. In case of any change in the mobile
number or social media accounts, the same will be
intimated to the Police/Court within five days from
the date of the change.
32. It is expressly made clear that in case of violation of
any of these conditions, the prosecution will have the right to file
a petition for cancellation of the bail.
33. The petition stands accordingly disposed of. A copy of
this order be sent to the Jail Superintendent, District Jail,
Dharamshala, HP and the learned Trial Court by FASTER.
34. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever, on
the case’s merits.
(Rakesh Kainthla)
Judge
12th March, 2026
(Chander)
Digitally signed
by CHANDER
CHANDER SHEKHAR
SHEKHAR Date: 2026.03.12
17:35:20 +0530
