Sashi Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 82 of 2025, dated 20.05.2025, registered at Police Station Dharmashala, District Kangra, H.P., for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS).

It has been asserted that, as per the prosecution, 13 grams of heroin were recovered from a room located on the ground floor of the petitioner’s house. The room was in possession of the son-in-law of the petitioner, and no recovery was effected from the petitioner’s possession. The police have completed the investigation and filed the charge sheet before the Court. Petitioner was not in conscious possession of the heroin. The co- accused has been released on bail, and the petitioner is entitled to bail on the principle of parity. 13 grams of heroin is an intermediate quantity, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner would abide by all the terms and conditions that the Court may impose upon him. 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 19.05.2025. They were checking the traffic at Ghiyari Pul, Yol. They received a secret information at 12.30 AM that Shashi Kumar (the present petitioner) and Gautam (co-accused) were selling heroin from their home. A huge quantity of heroin could be recovered from their house. The police reduced the information into writing and sent it to the Additional Superintendent of Police, Kangra. Police associated Anil Kumar and Abhishek Anand and went to the petitioner’s house. The police checked the house in the presence of the petitioner and co-accused (Gautam). The police recovered one transparent polythene packet containing 13 grams of heroin. Police seized the heroin and arrested the petitioner and the co-accused. Heroin was sent to SFSL Junga, and as per the result of analysis, it was found to be a sample of Diacetylmorphine (heroin). FIR Nos. 34 of 2020, 16 of 2022, 128 of 2022, 137 of 2022, 130 of 2022 and 141 of 2022 are pending against the petitioner. The charge sheet was filed and presented before the learned Trial Court. The matter was listed for prosecution evidence on 12.01.2026. Hence, the status report.

I have heard Mr Arsh Chauhan, Advocate, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General for the respondent/State.

Mr Arsh Chauhan, learned counsel for the petitioner, submitted that the petitioner is innocent, and he was falsely implicated. The co-accused has been released on bail, and the petitioner is entitled to bail on the principle of parity. One of the independent witnesses has turned hostile. There is no material on record to connect the petitioner with the commission of crime. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

Mr Jitender Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner had earlier filed a bail petition before this Court, which was registered as Cr.MP(M) No. 2013 of 2025 and was dismissed on 17.09.2025. The subsequent bail petition only lies if there is a change in circumstances. The petitioner has not shown any change in the circumstances. Hence, it was prayed that the present petition be dismissed.

I have given 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 bail petition before the Court, which was registered as Cr.MP(M) No. 2013 of 2025 and was dismissed on 17.09.2025. It was held in 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 observed:

“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:

“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.”

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:

“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 circumstances. A material change in circumstances settled by law is a change in the fact situation or law that 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 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.”

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.

It was submitted that a charge sheet has been filed, and this is a change in circumstances. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406: (2017) 2 SCC (Cri) 542: 2017 SCC OnLine SC 295 that the filing of a charge sheet does not amount to a change in circumstances. It was observed:

“12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the fact that when a charge sheet is filed, it amounts to a change of circumstance. Needless to say, the 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 charge sheet for the trial of the accused persons.”

Thus, the petitioner cannot claim bail on the ground that the charge sheet has been filed.

It was submitted that the co-accused has been released on bail, and the petitioner is also entitled to bail on the principle of parity. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Sagar v. State of U.P., 2025 SCC OnLine SC 2584, that a person cannot be released on bail after applying the principle of parity without examining his role. It was observed:

“14. What flows from the above judgments, which have been referred to, only to the limited extent indicated above, is that the High Courts speak in one voice that parity is not the sole ground on which bail can be granted. That, undoubtedly, is the correct position in law. The word ‘parity’ is defined by the Cambridge Dictionary as “equality, especially of pay or position.” When weighing an application on parity, it is the ‘position’ that is the clincher. The requirement of ‘position’ is not met only by involvement in the same offence. Position means what the person whose application is being weighed, his position in crime, i.e., his role, etc. There can be different roles played - someone part of a large group, intending to intimidate; an instigator of violence; someone who throws hands at the other side, instigated by such words spoken by another, someone who fired a weapon or swung a machete - parity of these people will be with those who have performed similar acts, and not with someone who was part of the group to intimidate the other by the sheer size of the gathering, with another who attempted to hack away at the opposer's limbs with a weapon.”

It was submitted that there is a delay in the progress of the trial, and the petitioner is entitled to bail. This submission cannot be accepted as the copies of the order sheets have not been filed to demonstrate that the delay is attributable to the prosecution or the Court. The status report shows that the matter was listed for the recording of statements of the prosecution witnesses on 12.01.2026. Therefore, the status report does not show any delay; however, if the trial does not proceed expeditiously, the petitioner would be entitled to file a fresh petition for bail on the ground of delay.

No other point was urged.

In view of the above, the petitioner is not entitled to bail. Hence, the present petition fails, and it is dismissed.

The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.