Swaroop Chand Vs State of Hp

The petitioner has filed the present petition for seeking regular bail in FIR No. 109 of 2024, dated 24.12.2024, registered at Police Station Darlaghat, District Solan, H.P., for the commission of an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’).

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

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It has been asserted that, as per the prosecution, the police searched Pandit Dhaba and recovered one weighing machine and a plastic packet containing 47.38 grams of opium. The police seized the packet and arrested the petitioner. The petitioner is innocent, and he was falsely implicated. He belongs to a respectable family. The police have filed the charge sheet, and no fruitful purpose would be served by detaining the petitioner in custody. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 24.12.2024. They received a secret information at 04:45 pm near Bhararighat that the petitioner was dealing with opium in his Pandit Dhaba. The police reduced the information into writing and searched the Dhaba in the presence of Mohan Singh (UpPradhan), Constable Prem Chand, and the petitioner. Police recovered one weighing machine and a plastic packet containing 47.38 grams of opium. The police seized the opium and arrested the petitioner. The opium was sent to SFSL, Junga and Morphine, Codeine, Thebaine, Papaverine, Narcotine and Meconic acid were found in it after the analysis. The percentage

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of Morphine in the opium was 4.26% w/w. FIR No. 40/12 dated 17.02.2012 & FIR No.211/19 dated 16.09.2019 have been registered against the petitioner, which are pending before the Court. The matter is listed before the learned Special Judge-II, Solan, for consideration on charge on 29.8.2025. Hence, the status report.

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I have heard Mr. Udit Shaurya Kaushik, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.

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Mr. Udit Shaurya Kaushik, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. There is no material on record to connect the petitioner with the commission of crime. The petitioner has not proved to be the owner of the dhaba from where the recovery was effected. The police have filed the charge sheet, and no fruitful purpose would be served by detaining the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the petitioner

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had taken similar pleas in the previous petition, which were negated by this court. It is impermissible to take the same pleas in the subsequent bail petition as the subsequent bail petition does not amount to a review of the order passed by the Court in the earlier bail petition. The subsequent bail petition only lies if there is a change in the circumstances and the petitioner has failed to establish any change in the circumstances. The trial has not yet commenced, and releasing the petitioner will interfere with the progress of the trial, as the petitioner can intimidate the witnesses in case of his release on bail. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It is undisputed that the petitioner had earlier filed a bail petition, bearing Cr.MP(M) No. 875 of 2025, which was dismissed on 29.5.2025. It was held in State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that once a bail application has been dismissed, a subsequent bail application can only be considered if there is a change of circumstances. It was observed:

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“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.

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Similarly, it was held in Kalyan Chandra Sarkar v.

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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:

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“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

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of such earlier rejection the subsequent bail application should be granted.”

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A similar view was taken in State of T.N. v. S.A. Raja,

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(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.

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This position was reiterated in Prasad Shrikant

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Purohit v. State of Maharashtra (2018) 11 SCC 458 , wherein it was

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observed:

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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.

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It was held in Ajay Rajaram Hinge v. State of

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Maharashtra, 2023 SCC OnLine Bom 1551, that a successive bail application can be filed if there is a material change in the

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

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was observed:

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7. It needs to be noted that the right to fle successive bail i applications accrues to the applicant only on the existence of a material change in circumstances. The sine qua non for f i ling subsequent bail applications is a material change in circumstances. A material change in circumstances settled by law is a change in the fact situation or law which requires the earlier view to be interfered with or where the earlier f i nding 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 of f ence the right to fle a fresh bail application. But the i power to decide such subsequent application operates in a completely dif f erent 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 dif f erent Judges, there would be conf l icting 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 conf i dence 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 f i le a subsequent bail application.”

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Therefore, the present bail petition can only be considered based on the change in the circumstances, and it is not permissible to review the order passed by the Court.

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It was submitted that the petitioner is not the owner of the Dhaba from where the recovery was effected. This plea was considered by this Court in the earlier bail petition, and it was held that the petitioner was in possession of the contraband. It was rightly submitted on behalf of the State that this Court does not sit over the order passed by it refusing the bail. 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:

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8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second application would be deemed to be seeking review of the earlier judgment, which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments.

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Therefore, it is impermissible to review the earlier order passed by this Court and hold that the petitioner was not in possession of the opium.

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The status report shows that the police have filed the charge sheet, and the matter is listed for consideration of the charge. It means that the trial has not yet commenced. There is a force in the submission made on behalf of the State that releasing the petitioner on bail, at this stage, can interfere with the smooth progress of the trial; therefore, the petitioner cannot be released on bail at this stage.

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In view of the above, the present petition fails and the same is dismissed.

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The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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6^th August 2025 (Chander)

Swaroop Chand v. State of Hp

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Swaroop Chand v. State of Hp

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