Dismissed¶¶54

Jony v. State of Hp

Bail – NDPS Act, Sections 20 & 29

Himachal Pradesh HC3 Jan 2025CRMPM/2386/2024

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Case brief

AI extract

What is this about?

High Court of Himachal Pradesh, Cr. MP(M) No. 2386 of 2024, Rakesh Kainthla J., decided 03.01.2025: regular-bail petition of Jony in FIR No. 108 of 2022, PS Baijnath, District Kangra (Sections 20 & 29 NDPS Act; 1.114 kgs charas; in custody since 26.06.2022) dismissed. Held: after two earlier rejections (13.12.2023; 24.07.2024), a successive bail application can be considered only on a change of circumstances and not as a review; CDR inconclusive due to three-hour gap between last calls and apprehension; trial progressing (13 of 17 witnesses) so delay ground rejected; State invoked Section 37 ND&PS twin conditions.

What did the court decide?

A successive bail petition can be considered only on the basis of a change in circumstances; it is not permissible to review the order passed in the earlier bail petition. ¶¶45

Jony Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the petitioner is entitled to regular bail in FIR No. 108 of 2022 notwithstanding the dismissal of his two earlier bail applications, i.e., whether there is a change of circumstances permitting consideration of the successive bail petition. +1 more

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Court's answer

A successive bail petition can be considered only on the basis of a change in circumstances; it is not permissible to review the order passed in the earlier bail petition.

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Ratio / Principle

The court deciding a subsequent bail application does not sit in appeal or review over the earlier order; being concerned only with the change in circumstances, its earlier prima facie finding against the petitioner stands absent such change, so no advantage can be derived from the call detail record.

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Key takeaways

The call detail record does not rule out the petitioner's presence at the place of the incident: the last calls (10:34 and 10:36 pm from Tehsil Jogindernagar) preceded his apprehension at Majehrna Chowk at 1:30 am by about three hours, and the locations of Joginder Nagar and Baijnath do not exclude his presence; the record therefore does not help the petitioner.ratio¶¶46
With 13 of 17 prosecution witnesses examined and the matter listed on 07.11.2024, the trial is at the fag end and progressing normally; the petitioner is not entitled to bail on the ground of delay.ratio¶¶51

Detailed headnote1 paragraphs

Bail — NDPS Act, Sections 20 & 29 — successive (third) bail petition after dismissal of Cr.MPM No. 1813 of 2023 (13.12.2023) and Cr.MPM No. 1442 of 2024 (24.07.2024) — maintainable only on a substantial change of circumstances, following State of Maharashtra v. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, State of M.P. v. Kajad (2001) 7 SCC 673, Kalyan Chandra Sarkar (2004) 7 SCC 528, State of T.N. v. S.A. Raja (2005) 8 SCC 380, Prasad Shrikant Purohit (2018) 11 SCC 458 and Ajay Rajaram Hinge 2023 SCC OnLine Bom 1551 — court deciding subsequent petition does not sit in appeal/review; earlier prima facie finding stands absent change in circumstances — call detail record (last calls 10:34/10:36 pm, Tehsil Jogindernagar; apprehension 1:30 am, Majehrna Chowk) leaves a three-hour gap and does not negate presence at the spot — trial at fag end (13/17 witnesses; listed 07.11.2024), so no bail on ground of delay — petition dismissed; observations confined to disposal and not touching merits.

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Neutral Citation No. ( 2025:HHC:572 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No. 2386 of 2024. Reserved on: 27.12.2024. Date of Decision: 03.01.2025.

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Jony ...Petitioner Versus State of H.P. ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner	: Mr.	Vivek Thakur, Advocate.
For the Respondent	: Mr.	Lokender Kutlehria, Additional
	Adv	ocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 108 of 2022, dated 26.06.2022, registered with the Police Station Baijnath, District Kangra, for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act). As per the prosecution, the petitioner and the co-accused were riding a bike. The petitioner had two bags with him, from

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

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Neutral Citation No. ( 2025:HHC:572 ) which 1.114 kgs of cannabis was recovered. The petitioner has been in custody since 26.06.2022. He was falsely implicated. He had filed two bail petitions before this Court, which were dismissed on 13.12.2023 and 24.07.2024. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

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The State has filed a status report asserting that the police party was checking the vehicles on 26.06.2022. One motorcycle came from Joginder Nagar's side. The petitioner was driving the motorcycle. He had two bags. The pillion rider had one backpack. The police searched the bags, which were being carried by the petitioner and found 1 kg 114 grams of Charas. The police seized the charas and arrested the petitioner and co-accused. As per the report of the analysis, the quantity of resin was found to be 31.66 % w/w. The prosecution has cited 17 witnesses, out of whom statements of 13 witnesses have been recorded. The matter was listed for recording the evidence of the prosecution witnesses on 07.11.2024.

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I have heard Mr. Vivek Thakur, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

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Neutral Citation No. ( 2025:HHC:572 ) 4. Mr Vivek Thakur, learned counsel for the petitioner,

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submitted that the petitioner is innocent and he was falsely implicated. The call detail record of the petitioner annexed to the present petition does not show his presence at the place of the incident. Independent witness was not associated by the prosecution. The prosecution case is inherently suspect; therefore, 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 was found in possession of a commercial quantity of charas and rigours of Section 37 of ND&PS Act apply to his case. He has failed to satisfy the twin conditions laid down under Section 37 of the ND&PS Act. 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 filed the bail petition Cr.MPM No. 1813 of 2023, which was dismissed on 13.12.2023 and Cr.MPM No. 1442 of 2024, which was dismissed on 24.07.2024. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605 that once a bail

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Neutral Citation No. ( 2025:HHC:572 )

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application has been dismissed, subsequent bail application can

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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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Similar is the judgment delivered in State of M.P. v.

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Kajad , (2001) 7 SCC 673 , wherein it was observed: -

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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 a review of the earlier judgment, which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments.

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Neutral Citation No. ( 2025:HHC:572 ) 9. Similarly, it was held in Kalyan Chandra Sarkar Vs.

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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 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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11. This position was reiterated in Prasad Shrikant Purohit v.

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State of Maharashtra (2018) 11 SCC 458 , wherein it was observed:

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30. Before concluding, we must note that 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

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Neutral Citation No. ( 2025:HHC:572 ) 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 Maharashtra, 2023 SCC OnLine Bom 1551 that successive bail application can be filed if there is a material change in the circumstance, which means the change in the facts or the law. It was observed:

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7. It needs to be noted that the right to f i le successive bail 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 circumstance. 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, change in circumstance has no bearing on the salutatory principle of judicial propriety that successive bail application needs to be decided by the same Judge on 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 f i le a fresh bail application. But, the 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

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Neutral Citation No. ( 2025:HHC:572 ) 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 on the basis of 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 call detail record of the mobile phone of the petitioner shows that the petitioner was not present at the place of the incident, and the whole case of the prosecution is false. This submission is not acceptable. The call detail record placed on the record shows that various calls were made from different places, which shows that the petitioner was moving. The last calls were made at 10:34 and 10:36 pm from Tehsil Jogindernagar. The petitioner was apprehended at Majehrna Chowk at 1:30 am. There was a gap of three hours between the call and the apprehension of the petitioner. Keeping in view the location of Tehsil Joginder Nagar and Baijnath, the call detail record does not rule out the presence of the petitioner at the place of the incident and will not help the petitioner.

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In any case, the Court deciding the subsequent bail application does not sit in appeal or review of the order passed in

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Neutral Citation No. ( 2025:HHC:572 )

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the earlier bail petition. The Court is only concerned with the change in the circumstances. The call detail record concerns the merit of the case, and once the Court had held that a prima facie case is made out against the petitioner, it is difficult to see how the Court can hold in the subsequent bail that no case is made out without the change in circumstances. Therefore, no advantage can be derived from the call detail record.

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The status report shows that 13 out of 17 witnesses have been examined, and the matter was listed on 07.11.2024. This shows that the trial is at the fag end and is progressing normally; hence, the petitioner cannot be held entitled to bail on the ground of delay.

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No other point was urged.

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Consequently, the present petition fails, and the same is

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dismissed.

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The observation made herein before 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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3^rd January, 2025 (Nikita)

Jony v. State of Hp

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Jony v. State of Hp

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