Pankaj @ Panku vs State Of HP

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail in FIR No. 35 of 2024, dated 01.03.2024, registered for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act at Police Station Palampur, District Kangra, H.P.

It has been asserted that, as per the prosecution, the police were on patrolling duty on 1.03.2024 at about 5:45 PM at Ram Chowk, when they received secret information that Shashi Kumar @ Ashu and his elder brother Deepak Kumar, and Pankaj Kumar @ Panku (petitioner) were selling heroin from their house, and a huge quantity of heroin could be recovered by the search of the house. The police went to the room of Shashi Kumar and recovered 8 grams of heroin. The learned Special Judge, Palampur, District Kangra, H.P., had released all the accused on 12.04.2024. An application for cancellation of bail was filed because the petitioner was found involved in the commission of similar offences, which was allowed on 25.04.2025, and the petitioner was taken into custody. The petitioner was found in possession of 8 grams of heroin. He has undergone a substantial part of the imprisonment after applying the principle of proportionality, and the pre-trial detention of the petitioner is not justified. The petitioner would abide by the terms and conditions that the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

The petition is opposed by filing a status report asserting that the police were on patrolling duty on 1.3.2024. They received information at 5.45 PM at Ram Chowk that Shashi Kumar alias Ashu, his elder brother Deepak Kumar, and Pankaj Kumar alias Panku were selling heroin from their house. The information was reduced into writing and was sent to the Sub Divisional Police Officer, Palampur (SDPO). Witnesses Nisha Devi and Nardev Singh were associated, and the police went to the residence of Shashi Kumar, where Shashi Kumar, his elder brother, Deepak Kumar, and Pankaj alias Panku (the present petitioner) were found present. The police party searched the room of Shashi Kumar and recovered a transparent polythene packet concealed beneath the mattress. The police checked the polythene packet and found 08 grams of heroin in it. The police seized the heroin and arrested Shashi Kumar, Deepak Kumar and Pankaj. The bank account details and the property were reviewed, but no suspicious activity was found. Learned Special Judge, Palampur had released all the accused on 12.4.2024 on his furnishing personal and surety bond of ₹1,50,000/-; however, the petitioner and Shashi Kumar were found involved in the commission of a similar offence for possessing 26 grams of opium and 22 grams of heroin, hence, FIR No. 129 of 2024, dated November 14, 2024, was registered against them. An application was filed for the cancellation of their bail in the present case, which was allowed, and the bail was cancelled on 22th /25th April 2025. The heroin was sent to the SFSL, and as per the analysis, it was found to be a sample of diacetylmorphine (heroin). FIR Nos. 96 of 2017, 165 of 2018, 104 of 2023 and 129 of 2024 are registered against the petitioner. The petitioner is involved in the commission of a heinous offence, and he is likely to indulge in the commission of similar offences if released on bail. The matter was listed for recording the statements of prosecution witnesses on 9.04.2026 before the learned Special Judge, Palampur, District Kangra, H.P. Therefore, it was prayed that the present petition be dismissed.

I have heard Mr Umesh Kanwar, learned counsel for the petitioner and Mr Lokender Kutlehira, learned Additional Advocate General for the respondent/State.

Mr Umesh Kanwar, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The petitioner has remained in custody for more than one year. He was found in possession of 8 grams of Heroin as per the prosecution and he has undergone a substantial part of the sentence, if the principle of proportionality is applied to the present case, hence, he prayed that the present petition be allowed and the petitioner be released on bail he relied upon the judgments of this Court passed in Sachin Kumar vs. State of H.P. 2026:HHC10217 and Shubham Chaudhary vs State of H.P 2026:HHC:6937 in support of his submission.

Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner had earlier filed a bail petition, which was dismissed by this Court. The present bail petition only lies when there is a change in the circumstances. The petitioner has not shown any change in the circumstances, and he is not entitled to bail. Hence, he prayed that the present petition be dismissed.

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

It is undisputed that the petitioner had earlier filed a petition, which was registered as Cr.MP(M) No. 1886 of 2025, and was dismissed by this Court on 04.09.2025. It was held in the 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 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.

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."

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

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.

This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458, wherein it was observed:

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.

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:

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 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 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 recognised 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."

Therefore, the present bail petition can only be considered based on the change in the circumstances, and it is impermissible to review the order passed by the Court.

It has been submitted that the petitioner has undergone a substantial part of the imprisonment, considering the quantity of heroin stated to be found in possession of the petitioner. The police have not completed the evidence, which violates the petitioner's right to a speedy trial; therefore, the petitioner should be released on bail. This submission has to be accepted as correct.

The status report shows that the petitioner was found in possession of 8 grams of heroin. His bail was cancelled by learned Special Judge, Palampur, vide order dated 22.04.2025/25.04.2025. This shows that the petitioner has undergone about one year's imprisonment.

The Central Government has specified 250 grams of heroin as the commercial quantity, which means that the person possessing 250 grams of heroin can be sentenced to imprisonment for a period of 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. This Court held in Shubham Chaudhary (supra) that where the accused has already undergone a substantial part of the imprisonment which can be awarded to him in case of his conviction, his further detention is not justified. The petitioner has also undergone a substantial part of his imprisonment that can be awarded to him in case of his conviction, and his further detention in custody is not justified.

It was submitted that the petitioner has criminal antecedents and is not entitled to bail on this consideration. 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 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."

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 SHO 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.

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.

The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent, Lala Lajpat Rai Correctional Home, Dharamshala, District Kangra, H.P. and the learned Trial Court by FASTER.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the merits of the case.