Rohit Kumar Vs State of Hp

( 2025:HHC:38118 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1868 of 2025 Reserved on: 04.11.2025 Decided on: 13.11.2025 Rohit Kumar ....Petitioner Versus State of H.P. …Respondent

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Coram The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?¹

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For the petitioner: Mr. Vijender Katoch, Advocate. For the respondent/State: Mr. Manoj Chauhan, Additional Advocate General. ____________________________________________________ Sushil Kukreja, Judge The instant bail application has been moved by the

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petitioner under Section 483 of Bhartiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) for releasing him on bail, in case FIR No. 36/2023, dated 01.02.2023, under Sections 21, 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the Act”), Section 201 of the Indian Penal Code (hereinafter referred to as “IPC”) and Sections 181, 184, 192 and 196 of the Motor Vehicles Act (hereinafter referred to as “MV” Act), registered at Police Station Nurpur, District Kangra, H.P.

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

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( 2025:HHC:38118 ) 2

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The prosecution story, in brief, is that on 31.01.2023,

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at about 5:20 P.M., while the police party was on routine patrolling duty and present at place Jachh , they received a secret information that a black Verna car bearing registration No. PB02-EE-2607 was coming from Fatehpur side and going towards Jassur side, in which, two occupants namely Vishal Kumar and Rohit Kumar were travelling alongwith huge quantity of chitta /heroin and cash. Accordingly, the police party, associated Atul Sharma as independent witness in the proceedings and laid a nakka . Around 6:00 P.M., the aforesaid car was seen going towards Jassur Main Chowk, which was signaled to stop but its driver did not stop the car, hit the barricade and tried to run away from the spot. However, due to the impact of hitting, the car did not start and the police party managed to get hold of the persons sitting in the car. Since there was a traffic jam on the spot on account of road construction work, the car was towed and brought near the police assistance room, Jassur . In the meantime, SDM Nurpur Sh. Gursimran and Tehsildar Nurpur Sh. Sandeep Kumar reached the spot and were associated as independent witnesses in the proceedings. In presence of the

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aforesaid witnesses, the occupants of the car disclosed their names as Vishal Kumar and Rohit Kumar (petitioner herein). During search of the car, underneath the co-driver seat, a handbag was found. On opening the same, a packet, containing two transparent polythene packets was found. When the said packets were opened and checked, in one packet a grey coloured solid substance and in another packet white and grey coloured substance in the form of powder was recovered, which was found to be chitta/heroin. Thereafter, the police recovered another polythene packet, which was kept on the rear foot mat of the car, in which, the currency notes were kept. The police party also checked the dashboard of the car and recovered a bowl, a steel spoon, a mini electronic weighing machine, empty transparent polythene packets, rubber bands and 7 strips of Alprazolam IP 0.5 mg, out of which, 5 strips containing 15 tablets each and two strips containing 13 and 12 tablets, respectively were sealed. On weighment, the recovered heroin was found to be 1.100 Kgs, whereas, a sum of Rs. 13,20,330/- was also recovered from the petitioner and co-accused. After completion of necessary codal formalities, FIR detailed hereinabove was

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( 2025:HHC:38118 ) 4

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registered against the petitioner and co-accused and they were arrested on 01.02.2023.

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The bail application has been filed by the petitioner on the ground that that the petitioner is in judicial custody since 01.02.2023 and the trial is not going to be completed in near future, therefore, the petitioner deserves to be released on bail, as no fruitful purpose would be served by keeping him behind the bars for an unlimited period. He further contended that there is inordinate delay in conclusion of trial, which infringes upon the right of speedy trial of the petitioner, as such, he is entitled to be released on bail on the ground that his right of speedy trial has been violated.

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Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail. He further contended that the present bail application filed by the petitioner is the successive one, which is liable to be dismissed as there is no change in circumstances after the dismissal of the earlier bail application.

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I have heard the learned Counsel for the petitioner

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as well as the learned Additional Advocate General for the respondent/state and also gone through the material available on record. The perusal of the record indicates that the quantity of the heroin allegedly recovered in the present case is 1.100 Kgs,. Since the aforesaid quantity of the heroin falls within the definition of commercial quantity, therefore, the grant of the bail in this case is governed by the provisions of Section 37 of the NDPS Act, which reads as under:-

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"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974)

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(a) every offence punishable under this Act shall be cognizable;

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(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

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(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

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(ii) where the Public Prosecutor opposes the application, reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

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(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

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The Hon’ble Apex Court in the matter of The State

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(NCT of Delhi) Narcotics Control Bureau Vs. Lokesh

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( 2025:HHC:38118 ) 6

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Chadha, (2021) 5 Supreme Court Cases 724, has held that no person accused for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The relevant portion of the said judgment is reproduced hereunder:-

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“9. …….Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied “that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail……………..”.

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Thus, in view of the aforesaid decision of Hon’ble

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Apex Court, unless the conditions as laid down under Section 37 of the NDPS Act are satisfied, the bail cannot be granted to an accused, who has been found in possession of the commercial quantity of the contraband under the provisions of the NDPS Act. Moreover, the limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 of the NDPS Act are in addition to the limitations under the Code of Criminal Procedure.

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( 2025:HHC:38118 ) 7

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In the instant case, the petitioner has allegedly been found in possession of 1.100 Kgs of heroin and has failed to satisfy the conditions as laid down under Section 37 of the NDPS Act to release him on bail, as such he is not entitled to be released on bail.

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Pertinently, the present is the successive bail application filed by the petitioner. Earlier, the petitioner had preferred bail application being Cr. MP (M) No. 2532 of 2023 before this Court, seeking bail, which came to be dismissed vide order dated 12.07.2024.

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It is a well settled principle of law that when the successive bail application comes before the Court, the Court would be very conscious while considering the same. As held by the Hon’ble Apex Court in State of Maharashtra Vs. Captain Buddhikota Subha Rao , AIR 1989 SC 2292 , that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for getting bail in successive bail application. The Court should not pass the order of releasing the accused on bail in successive bail application merely establishing some cosmetic change

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( 2025:HHC:38118 ) 8

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between time gap of two applications. There should be drastic change during the period between two applications, which would entitle the accused for bail.

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In State of M.P vs. Kajad (2001) 7 SCC 673 Hon'ble Supreme Court categorically considered that when there are no changed circumstances, the successive bail application is nothing but review of the earlier application which cannot be maintainable. The relevant portion of the aforesaid judgment reads as under:

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“8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. 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) and various other judgments.”

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In State of Tamilnadu vs. S.A.Raja (2005) 8 SCC

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380 Hon'ble Supreme Court has held that:

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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

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( 2025:HHC:38118 ) 9

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filing of the bail applications without there being any change of circumstances would lead to bad precedents.”

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In the case of Kalyan Chandra Sarkar , vs Rajesh

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Ranjan (2004) 7SCC 528 Hon'ble Supreme Court held as

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follows:

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“20. "Before concluding, we must note though an accused has a right to make successive applications for 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 what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications………."

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In Virupakshappa Gouda & another vs. State of Karnataka and another (2017) 5 Supreme Court Cases 406

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Hon'ble Supreme Court has held that:

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“12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to Say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the chargesheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge……….”

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( 2025:HHC:38118 ) 10

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A perusal of the aforementioned judgments indicates that successive bail applications are permissible under the changed circumstances, but the change of circumstances must be substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order, which is not permissible under criminal law. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail application was rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier application.

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There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.

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In the instant case, this Court is of the view that after the dismissal of the earlier bail application, there is no substantial change in the circumstances which would entitle the

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( 2025:HHC:38118 ) 11

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petitioner to file the present application. Therefore, in absence of any changed circumstances, the present successive application for bail cannot be entertained.

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The perusal of the material available on record would

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further reveal that the charge sheet in this case has been filed and the evidence of prosecution has commenced. After going through the material available on record, I am of the considered opinion that at this stage, the petitioner has failed to make out a case to release him on bail. The contention of the learned counsel for the petitioner that the petitioner deserves to be released on bail as he is behind the bars for the last more than two years and nine months is no ground to grant him bail, as the quantity of heroin involved in the present case is 1.100 kgs, which is commercial quantity. Moreover, as observed earlier, the trial in the case has commenced and there is nothing on record to suggest that the same will not be completed in near future.

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Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed. However, since the petitioner is behind the bars since 01.02.2023, the learned

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trial Court is directed to conclude the trial as expeditiously as possible.

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Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits

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of the case and the trial Court will not be influenced by any observations made therein.

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( Sushil Kukreja )

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November 13, 2025 Judge (raman)

Rohit Kumar v. State of Hp

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Rohit Kumar v. State of Hp

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