Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1366

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Birender Kumar - Petitioner
Versus
State of Himachal Pradesh – Respondent
Cr. MP(M) No. 2040 of 2025
Decided On : 27-10-2025

Advocates Appeared:
For the Petitioner:Mr N.S. Chandel, Senior Advocate with Mr Sidharth, Advocate.
For the Respondent:Mr Ajit Sharma, Deputy Advocate General.

Successive bail applications require material change in circumstances; no review of prior rejections. Belated Article 22(1) non-communication plea after multiple bail denials and red-handed arrest rejected.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20, 35, 37, 54 - Bail - Subsequent applications - Permissible only on substantial change in circumstances directly impacting earlier decision - Court must consider prior rejections, record fresh grounds for grant; no review or re-agitation of earlier findings like prima facie possession or rigours of Section 37 - Judicial discipline demands restraint absent material change. (Paras 8-13, 18-19)

(B) Constitution of India - Article 22(1) - Grounds of arrest - Mandatory to inform arrested person effectively - Non-compliance vitiates arrest, entitling release even under statutory restrictions - However, belated plea after one-and-half years, multiple prior bail rejections without raising issue, and red-handed recovery obviate claim - Accused aware of reasons from circumstances; prior silence forfeits remedy. (Paras 14-17)

Facts of the case:
Search of premises and adjacent areas yielded plastic box with cannabis near cowshed door, two boxes of charas (total 5.02/5.92 kgs) under tree, steel box with Rs.4,99,500/- in grass bundle, and 12 bottles of liquor from store. FIR registered under NDPS and Excise Act provisions; petitioner arrested. Prior bail petitions dismissed; claims false implication, no personal recovery, illegal arrest, completed investigation.

Findings of Court:
No change in circumstances demonstrated; earlier findings on possession and Section 37 twin conditions undisturbed; Article 22(1) violation not timely raised or substantiated.

Issues: Maintainability of successive bail absent change in circumstances; entitlement to bail on alleged non-communication of arrest grounds under Article 22(1).

Ratio Decidendi: Successive bail applications demand material change in facts or law warranting revisit; courts cannot overrule priors without such, preserving judicial propriety - Belated constitutional violation claims post silence in proceedings rejected, especially with red-handed arrest implying knowledge.

Result: Bail petition dismissed.

Table of Content
1. commercial quantity charas, cash, liquor recovered from possession. (Para 1 , 2 , 3)
2. arguments on illegal arrest versus successive bail maintainability. (Para 4 , 5)
3. successive bail requires material change in circumstances; no review. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 19)
4. delayed article 22(1) grounds-of-arrest plea rejected. (Para 14 , 15 , 16)
5. ndps section 37 twin conditions not satisfied. (Para 17 , 18)
6. bail petition dismissed absent changed circumstances. (Para 20 , 21 , 22)

JUDGMENT :

Rakesh Kainthla, J.

The petitioner has filed the present petition for seeking regular bail in FIR No. 236 of 2024, dated 19.10.2024, registered at Police Station Sadar, District Chamba, H.P., for the commission of offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS) and Section 39(1) (a) of H.P. Excise Act, 2011.

2. It has been asserted that, as per the prosecution, the police obtained a search warrant to search the petitioners’ house located at village Kiyani, Tehsil and District Chamba. The police searched the house and the cow shed in the presence of independent witnesses and recovered a plastic box kept near the door of the cow shed. The Investigating Officer checked the box and found cannabis in it. The police also recovered two boxes containing charas concealed beneath the tree adjacent to the cow shed. A steel box kept in the bundle of grass having Rs.4,99,500/- was also recovered by the police. The total weight of the charas was found to be 5.02 kgs. The police searched the store on the ground floor of the house and recovered a box containing 12 bottles of IMFL bearing Mark Imperial Blue. Police registered the FIR and seized the case property, and arrested the petitioner. The petitioner had earlier filed bail petitions, which were registered as Cr.MP(M) No. 286 of 2025 and Cr.MP(M) No. 1104 of 2025, and were dismissed on 13.03.2025 and 23.06.2025. The petitioner is innocent, and he was falsely implicated. He belongs to a respectable family. He has roots in society, and there is no apprehension of his absconding. The investigation is complete, and no fruitful purpose would be served by detaining the petitioner in custody. The Investigating Officer did not inform the grounds of arrest to the petitioner, which is violative of Article 22(1) of the Constitution of India. FIR Nos. 85/2022, 59/23 and 237/2011 were registered against the petitioner. Hence the petition.

3. The petition is opposed by filing a status report asserting that the police party had obtained a search warrant to search the house of Birender Kumar-the present petitioner. The police associated independent witnesses and searched the house and cowshed in their presence. The police recovered 1 plastic box kept near the door of the cowshed. The police checked the box and found cannabis in it. Police also recovered two boxes containing charas concealed beneath the tree adjacent to the cowshed. The police found a steel box kept in the bundle of grass on the upper floor of the cowshed. The police checked it and found Rs. 4,99,500/- in it. The charas was weighed and its weight was found to be 5.92 kgs. The police checked the store on the ground floor and recovered a box containing 12 bottles of Imperial Blue. The police arrested the petitioner and seized the charas, liquor, and currency notes. The police filed the charge sheet before the learned Trial Court, and the matter was listed on 10.10.2025 for recording the statements of prosecution witnesses. FIR No. 85/2022 and FIR No. 59/2023 are registered against the petitioner, and FIR No. 237/2011 was compounded at his instance. The petitioner has a criminal history. A commercial quantity of charas was recovered from his possession. The petitioner would jump over the bail and abscond in case of his release on bail; therefore, it was prayed that the present petition be dismissed.

4. I have heard Mr N.S. Chandel, learned Senior Counsel, assisted by Mr