1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) vide FIR No. 4 of 2024, dated 12.1.2024, registered at Police Station East, District Shimla, H.P. The petitioner is living with his parents, wife and a daughter. The petitioner’s father has been residing with him for eight years. The petitioner earns his livelihood by driving the truck which he had purchased after raising a loan from the bank. The place of incident is heavily populated and no independent witness was associated. The co-accused was also stated to be present in the house and the liability of the petitioner or co-accused is to be determined. False cases were registered by the police against the petitioner. He has been acquitted in some of the cases. The mere pendency of the criminal case is not sufficient to deny bail to a person. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

2. The petition was opposed by filing a status report, asserting that the police party were patrolling on 12.01.2024 when a secret information was received that Ankush Kumar, the present petitioner, was selling Heroin for his room. The police party completed the formalities and went to the room of the petitioner where he and one Ritik were found. The police recovered 11.43 grams of Heroin, a pocket electronic weighing scale and a burnt currency note of ₹ 20 during the search. The police seized the articles and arrested the occupants of the room. F.I.R. No. 110 of 2018, dated 03.06.2018, for the commissions of offences punishable under Sections 341, 323, 504, and 506 read with Section 34 of the Indian Penal Code (IPC) registered at Police Station, Theog, District Shimla, F.I.R. No.119 of 2010 for the commission of offences punishable under Sections 323, 324, 506 of IPC registered at Police Station Sadar District Shimla, H.P., F.I.R. No. 56 of 2023, dated 30.05.2023, for the commission of an offence punishable under Section 21 of ND& PS Act registered at Police Station East District Shimla, H.P. and F.I.R. 180/23 dated 06.11.2023 for the commission of an offence punishable under Section 21 ND&PS Act registered at P.S. Panchkula Haryana are pending against the petitioner. The result of the analysis confirmed the substance to be Diacetylmorphine (Heroin). The traces of Heroin were also found on the ₹20 burnt currency note and electric weighing scale recovered from the room of the petitioner. The petitioner was involved in the commission of similar offences in the past. The challan has been prepared and presented before the Court on 7.3.2024. The matter is now listed for the prosecution evidence on 28.8.2024. Hence, the status report.

3. I have heard Mr. Shanti Swaroop, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State.

4. Mr. Shanti Swaroop, learned counsel for the petitioner submitted that the petitioner is residing in his home with his family members. The co-accused was also present in the room at the time of the recovery as per the prosecution version. It is yet to be ascertained who was in possession of the heroin. The petitioner was falsely implicated and he has been acquitted in some of the cases. The mere pendency of the criminal case is no reason to deny the bail to a person. He relied upon the judgment of the Hon’ble Supreme Court in Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) 2023 LiveLaw (SC) 260 in support of his submission.

5. Mr Ajit Sharma, learned Deputy Advocate General for the respondent-State submitted that the petitioner was found in possession of heroin, which is adversely affecting the young generation. His earlier bail was dismissed by this Court and there are no changes in the circumstances. The petitioner had taken all these pleas in the earlier bail petitions. They were considered and rejected by the Court. Therefore, he prayed that the present petition be dismissed.

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

7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under: -

“12. The grant of bail is a discretionary relief which nec- essarily means that such discretion would have to be ex- ercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses be- ing tampered with or the apprehension of there be- ing a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evi- dence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

6

Neutral Citation No. ( 2024:HHC:7489 )

(d) Frivolity of prosecution should always be con- sidered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Ya- dav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should ex- ercise its discretion in a judicious manner and not as a matter of course. Though at the stage of grant- ing bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also nec- essary for the court granting bail to consider among other circumstances, the following factors also be- fore granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the com- plainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudar- shan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

"7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

‘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

(viii) danger, of course, of justice being thwarted by grant of bail."

9. It is undisputed that the petitioner had earlier filed a bail petition bearing Cr.MP(M) No. 506 of 2024 titled Ankush Kumar Vs. State of H.P. which was dismissed by the Court on 20.4.2024 on the ground that criminal cases were pending against the petitioner and the possibility of the petitioner committing some offence while on bail cannot be ruled out. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605 that once a bail application has been dismissed, 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 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."

10. Similar is the judgment delivered in State of M.P. v. Kajad, (2001) 7 SCC 673, wherein it was observed: -

"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."

11. Similarly, it was held in Kalyan Chandra Sarkar Vs. 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.”

12. A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380, wherein it was observed:

"9. When a learned Single Judge of the same court had denied bail to the respondent for certain reasons and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of bail applications without there being any change of circumstances would lead to bad precedents."

13. 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 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."

14. 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:

"7. It needs to be noted that the right to file successive bail applications accrues to the applicant only on the existence of a material change in circumstances. The sine qua non for filing subsequent bail applications is a material change in 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 finding 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 offence the right to file a fresh bail application. But the power to decide such 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.”

15. 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.

16. It was submitted that there is a delay in the progress of the trial and the petitioner is entitled to bail on this ground. This submission cannot be accepted. The status report shows that the charge sheet was filed before the Court on 7.3.2024 and the matter is listed for recording the statements of witnesses on 28.8.2024, therefore, it cannot be said that the trial is being delayed and the right to speedy trial of the petitioner is being violated.

17. It was submitted that the petitioner is residing with his family members and exclusive and conscious possession has not been proved. This aspect was considered in the earlier bail petition. The status report shows that the petitioner and co- accused were present at the time of the recovery of contraband and the effect of the petitioner residing with his family members will be seen during the trial and not at this stage.

18. It was submitted that the witnesses at Serial No. 6 to 9 have been summoned by the learned Trial Court. It is difficult to appreciate this grievance. It is for the prosecution to decide the order in which the witnesses are to be examined to unfold its case and it cannot be compelled to examine the witnesses in any particular order. The only concern of the accused is that the sequence of examination of the witnesses should not prejudice him. No prejudice has been pleaded; therefore, the bail cannot be granted because the witnesses at Serial No. 6 to 9 have been summoned first and not the other witnesses.

19. It was submitted that mere pendency of the criminal cases is no reason to deny bail. This aspect has been considered while deciding the earlier bail petition and it is unnecessary to repeat whatever was said in the earlier bail petition.

20. Consequently, there is no change in the circumstance justifying the grant of bail to the petitioner. Hence, the present petition fails and the same is dismissed.

21. 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.