Himachal Pradesh High Court
Reserved On: 06.04.2026 vs State Of Himachal Pradesh on 21 April, 2026
2026:HHC:12490
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 397 of 2026
Reserved on: 06.04.2026
.
Date of Decision: 21.04.2026.
Sansar Singh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
of
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt
Whether approved for reporting?1 No.
For the Petitioner : Mr Surinder Saklani, Advocate.
For the Respondent/State : Mr Ajit Sharma, Deputy
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in F.I.R. No. 39 of 2025, dated 23.05.2025,
registered for the commission of an offence punishable under
Section 20 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short ‘NDPS Act‘) at Police Station Rajgarh, District
Sirmour, H.P.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that a false case was registered
against the petitioner. The petitioner is a respectable person in
.
society. He is the sole earner of the family, and his family
members would suffer hardship due to his continuous detention.
The police have filed the charge sheet before the Court, and no
fruitful purpose would be served by detaining the petitioner in
of
custody. The independent witnesses to the recovery have turned
hostile, which shows the falsity of the prosecution’s case. The
rt
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.
3. The petition is opposed by filing a status report
asserting that the police received secret information on
23.05.2025 at about 8:40 am at Dharech bifurcation, Sheelabag
road, that the petitioner had brought Cannabis to Shalech Kanchi
and was waiting for the lift. A huge quantity of Cannabis could be
recovered by his search. The information was credible, and a
delay in procuring the search warrant would have led to the
destruction of the case property. Hence, the police reduced the
information to writing and sent it to the Sub Divisional Police
Officer (SDPO), Rajgarh, District Simrour, H.P. The police joined
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Daleep Singh and Dharam Singh and went towards Shalech
Kainchi, where the petitioner was found with a bag. The
.
petitioner identified himself as Sansar Singh @ Sonu. The police
searched the bag and recovered 3.320 kilograms of cannabis. The
police arrested the petitioner and seized the cannabis. The
cannabis was sent to State Forensic Science Laboratory (SFSL),
of
and it was confirmed to be an extract of cannabis and a sample of
charas after the analysis. The statements of witnesses were
rt
recorded as per their version, and after the completion of the
investigation, the charge sheet was filed before the learned
Additional Sessions Judge, Nahan District, Sirmaur on
28.07.2025. The statements of 2 witnesses have been recorded,
and the matter is listed on 24/04/2026 for recording the
statements of the prosecution witnesses. Hence, the status
report.
4. I have heard Mr Surinder Saklani, learned counsel for
the petitioner and Mr Ajit Sharma, learned Deputy Advocate
General for the respondent State.
5. Mr Surinder Saklani, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
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falsely implicated. The status report mentions that the petitioner
was waiting for a vehicle to take a lift, and that the petitioner was
.
waiting for the purchaser of the cannabis. Both of these facts
cannot exist together. The independent witnesses have not
supported the prosecution’s version, which shows the falsity of
the prosecution’s case. The prosecution has failed to complete
of
the evidence despite the lapse of more than one year, which
violates the petitioner’s right to a speedy trial. Hence, he prayed
rt
that the present petition be allowed and the petitioner be
released on bail. He relied upon Satyjeet Bhoi vs State of
Chattisgarh & another SLP (CRL. No. 2401/2026 and Jitender Kumar
vs. State of H.P. Cr.MP(M) No. 1258 of 2023 dated 13.06.2023 in
support of his submission.
6. Mr Ajit Sharma, learned Deputy Advocate General, for
the respondent/State, submitted that the petitioner was found in
possession of a commercial quantity of cannabis and the rigours
of Section 37 of the NDPS Act apply to his case. The petitioner has
not satisfied the twin conditions laid down under section 37 of
the NDPS Act, and he is not entitled to bail. Hence, he prayed that
the present petition be dismissed.
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7. I have given a considerable thought to the
submissions made at the bar and have gone through the records
.
carefully.
8. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC
314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:
of
(i) Broad principles for the grant of bail
56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1
SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while
rt
elaborating on the content of Article 21 of the Constitution
of India in the context of personal liberty of a personunder trial, has laid down the key factors that should be
considered while granting bail, which are extracted as
under: (SCC p. 244, paras 7-9)
“7. It is thus obvious that the nature of the charge is thevital factor, and the nature of the evidence is also
pertinent. The punishment to which the party may be
liable, if convicted or a conviction is confirmed, alsobears upon the issue.
8. Another relevant factor is whether the course of justice
would be thwarted by him who seeks the benignant
jurisdiction of the Court to be freed for the time being.
[Patrick Devlin, “The Criminal Prosecution in England”
(Oxford University Press, London 1960) p. 75 —
Modern Law Review, Vol. 81, Jan. 1968, p. 54.]
9. Thus, the legal principles and practice validate the Court
considering the likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the
process of justice. It is not only traditional but rational, in
this context, to enquire into the antecedents of a man who
is applying for bail to find whether he has a bad record,
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particularly a record which suggests that he is likely to
commit serious offences while on bail. In regard to
habituals, it is part of criminological history that a
thoughtless bail order has enabled the bailee to exploit the
.
opportunity to inflict further crimes on the members of
society. Bail discretion, on the basis of evidence about the
criminal record of a defendant, is therefore not an exercise
in irrelevance.” (emphasis supplied)
57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4
SCC 280: 2001 SCC (Cri) 674, this Court highlighted various
aspects that the courts should keep in mind while dealing
of
with an application seeking bail. The same may be
extracted as follows: (SCC pp. 284-85, para 8)
“8. The jurisdiction to grant bail has to be exercised on the
basis of well-settled principles, having regard to the
rt
circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction
will entail, the character, behaviour, means and standing
of the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of the
public or State and similar other considerations. It has also
to be kept in mind that for the purposes of granting the bail
the legislature has used the words “reasonable grounds for
believing” instead of “the evidence” which means the
court dealing with the grant of bail can only satisfy it (sic
itself) as to whether there is a genuine case against the
accused and that the prosecution will be able to produce
prima facie evidence in support of the charge.” (emphasis
supplied)
58. This Court in Ram Govind Upadhyay v. Sudarshan Singh,
(2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through
Banerjee, J., emphasised that a court exercising discretion
in matters of bail has to undertake the same judiciously. In
highlighting that bail should not be granted as a matter of
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course, bereft of cogent reasoning, this Court observed as
follows: (SCC p. 602, para 3)
“3. Grant of bail, though being a discretionary order, but,
however, calls for the exercise of such a discretion in a
.
judicious manner and not as a matter of course. An order
for bail bereft of any cogent reason cannot be sustained.
Needless to record, however, that the grant of bail is
dependent upon the contextual facts of the matter being
dealt with by the court and facts do always vary from case
to case. While the placement of the accused in society,
though it may be considered by itself, cannot be a guiding
of
factor in the matter of grant of bail, the same should
always be coupled with other circumstances warranting
the grant of bail. The nature of the offence is one of the
basic considerations for the grant of bail — the more
rt
heinous is the crime, the greater is the chance of rejection
of the bail, though, however, dependent on the factual
matrix of the matter.” (emphasis supplied)
59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC
528: 2004 SCC (Cri) 1977, this Court held that although it is
established that a court considering a bail application
cannot undertake a detailed examination of evidence and
an elaborate discussion on the merits of the case, yet the
court is required to indicate the prima facie reasons
justifying the grant of bail.
60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14
SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that
where a High Court has granted bail mechanically, the said
order would suffer from the vice of non-application of
mind, rendering it illegal. This Court held as under with
regard to the circumstances under which an order
granting bail may be set aside. In doing so, the factors
which ought to have guided the Court’s decision to grant
bail have also been detailed as under: (SCC p. 499, para 9)
“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
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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 theoffence;
(ii) nature and gravity of the accusation;
of
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
rt 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.” (emphasis supplied)
xxxxxxx
62. One of the judgments of this Court on the aspect of
application of mind and requirement of judicious exercise
of discretion in arriving at an order granting bail to the
accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 :
(2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this
Court, while setting aside an unreasoned and casual order
(Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856
and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857)
of the High Court granting bail to the accused, observed as
follows: (Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 :
(2022) 2 SCC (Cri) 170]), SCC p. 511, para 35)
“35. While we are conscious of the fact that liberty of an
individual is an invaluable right, at the same time while::: Downloaded on – 21/04/2026 20:33:24 :::CIS
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2026:HHC:12490considering an application for bail courts cannot lose sight
of the serious nature of the accusations against an accused
and the facts that have a bearing in the case, particularly,
when the accusations may not be false, frivolous or.
vexatious in nature but are supported by adequate material
brought on record to enable a court to arrive at a prima
facie conclusion. While considering an application for the
grant of bail, a prima facie conclusion must be supported
by reasons and must be arrived at after having regard to
the vital facts of the case brought on record. Due
consideration must be given to facts suggestive of the
of
nature of crime, the criminal antecedents of the accused, if
any, and the nature of punishment that would follow a
conviction vis-Ã -vis the offence(s) alleged against an
accused.” (emphasis supplied)
rt
9. Hon’ble Supreme Court held in State of Rajasthan v.
Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC
261 that the normal rule is bail and not jail, except where the
gravity of the crime or the heinousness of the offence suggests
otherwise. It was observed at page 308:
2. The basic rule may perhaps be tersely put as bail, not
jail, except where there are circumstances suggestive offleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences
or intimidating witnesses and the like, by the petitionerwho seeks enlargement on bail from the Court. We do not
intend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved is likely
to induce the petitioner to avoid the course of justice and
must weigh with us when considering the question of jail.
So also, the heinousness of the crime….”
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10. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
.
11. The status report mentions that the police
apprehended the petitioner at Shalech Kainchi with a backpack
containing 3.320 kilograms of cannabis. Hence, there are
sufficient reasons to connect the petitioner to the possession of
of
3.320 kilograms of cannabis at this stage.
12. Mr rt Surinder Saklani, learned counsel for the
petitioner, submitted that the status report mentions that the
police had received secret information that the petitioner was
waiting for a vehicle to take a lift, and the petitioner’s
interrogation revealed that he was waiting for a purchaser at
Shalech Kainchi. These contradictory versions falsify the
prosecution’s case. This submission cannot be accepted. It was
laid down by the Delhi High Court in Surender vs State 2009 (6)
ILR(Del) 549 that secret information received by the investigation
officer without examining the source is hearsay and inadmissible
in evidence. It was observed:
11……The law with regard to secret information being used
as a circumstance is entirely different. As indicated in
Kanhai Mishra alias Kanhaiya Misar v. State of Bihar, 2001
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2026:HHC:12490by an investigating officer without disclosing its source
cannot be made the basis to prove a circumstance. In
Bhugdomal Gangaram and Ors. etc. v. The State of Gujarat,
1983 CrLJ 1276, the Supreme Court, with regard to.
information, which the prosecution had received,
observed as under:
But since the informant has not been examined as a
witness, the evidence of P.W. 12 that he wasinformed that the accused Nos. 3 and 4 would be
coming behind the truck in a taxi is not admissible.
13. Similarly, the statement made by the accused during
of
the investigation is hit by Section 23 of Bharatiya Sakshya
Adhiniyam (BSA), 2023 and Section 181 of the Bhartiya Nagrik
rt
Suraksha Sanhita (BNSS),2023 and cannot be used as a piece of
evidence. It was laid down by the Hon’ble Supreme Court in
Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC
547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a
statement made by an accused during the investigation is hit by
Section 162 of Cr.P.C. (corresponding to Section 181 of BNSS) and
cannot be used as a piece of evidence. It was observed at page
568: –
“44. Such a person, viz., the person who is named in the
FIR, and therefore, the accused in the eyes of the law, can
indeed be questioned, and the statement is taken by the
police officer. A confession that is made to a police officer
would be inadmissible, having regard to Section 25 of the
Evidence Act. A confession, which is vitiated under Section
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2026:HHC:12490confession, unless it fulfils the test laid down in Pakala
Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1:
(1938-39) 66 IA 66: AIR 1939 PC 47 and as accepted by this
Court, may still be used as an admission under Section 21.
of the Evidence Act. This, however, is subject to the bar of
admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains an admission, the
statement being one under Section 161, it wouldimmediately attract the bar under Section 162 CrPC.”
14. Therefore, the contradiction being highlighted is
of
based on inadmissible evidence and will not help the petitioner.
15. The Central Government has notified that one
rt
kilogram of charas as the commercial quantity; therefore, the
petitioner was, prima facie, found in possession of the
commercial quantity of charas, and the rigours of section 37 of
the NDPS Act apply to the present case.
16. Section 37 of the ND&PS Act provides that in an
offence involving a commercial quantity, the court should be
satisfied that the accused is not guilty of the commission of an
offence and is not likely to commit any offence while on bail.
Section 37 of the NDPS Act reads as follows:
“37. Offences to be cognisable and non-bailable. – (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)–
(a) every offence punishable under this Act shall be
cognisable;
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(b) no person accused of an offence punishable for
offences under section 19, section 24, or section
27A and also for offences involving commercial
quantity, shall be released on bail or his own bond
.
unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there
are reasonable grounds for believing that he
of
is not guilty of such an offence and that he is
not likely to commit any offence while on
bail.
rt(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being
in force, on granting of bail.”
17. This section was interpreted by the Hon’ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
738, and it was held that in the absence of the satisfaction that
the accused is not guilty of an offence and he is not likely to
commit an offence while on bail, he cannot be released on bail. It
was observed:
“7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said Section. They are:
(1) In the case of a person accused of an offence
punishable under Section 19,
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2026:HHC:12490(3) Under Section 27A and
(4) offences involving commercial quantity.
8. The accusation in the present case is with regard to the
.
fourth factor, namely, commercial quantity. Be that as it
may, once the Public Prosecutor opposes the application
for bail to a person accused of the enumerated offences
under Section 37 of the NDPS Act, in case the court
proposes to grant bail to such a person, two conditions are
to be mandatorily satisfied in addition to the normal
requirements under the provisions of the Cr.P.C. or any
other enactment.
of
(1) The court must be satisfied that there are
reasonable grounds for believing that the person is
rt not guilty of such an offence;
(2) that person is not likely to commit any offence
while on bail.”
18. This position was reiterated in State of Kerala Versus
Rajesh, AIR 2020 SC 721, wherein it was held:
“19. This Court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act. In
Union of India vs Ram Samujh and Ors., (1999) 9 SCC 429, it
has been elaborated as under: –
“7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murdercase, the accused commits the murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or
in inflicting death-blow to a number of innocent
young victims, who are vulnerable; it causes
deleterious effects and a deadly impact on the
society; they are a hazard to the society; even if they
are released temporarily, in all probability, they
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2026:HHC:12490trafficking and/or dealing in intoxicants
clandestinely. The reason may be the large stake and
illegal profit involved. This Court, dealing with the
contention with regard to punishment under the.
NDPS Act, has succinctly observed about the adverse
effect of such activities in Durand Didier vs Chief Secy.
Union Territory of Goa, (1990) 1 SCC 95) as under:
24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugs
and psychotropic substances into this countryof
and illegal trafficking in such drugs and
substances have led to drug addiction among a
sizeable section of the public, particularly the
rt adolescents and students of both sexes and the
menace has assumed serious and alarming
proportions in the recent years. Therefore, inorder to effectively control and eradicate this
proliferating and booming devastating
menace, causing deleterious effects and a
deadly impact on society as a whole,Parliament, in its wisdom, has made effective
provisions by introducing Act 81 of 1985
specifying mandatory minimumimprisonment and fine.
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the person
accused of offences under the NDPS Act should not
be released on bail during trial unless the mandatoryconditions provided in Section 37, namely,
(i) there are reasonable grounds for believing
that the accused is not guilty of such offence;
and
(ii) that he is not likely to commit any offence
while on bail are satisfied. The High Court has
not given any justifiable reason for not
abiding by the aforesaid mandate while
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ordering the release of the respondent
accused on bail. Instead of attempting to take
a holistic view of the harmful socio-economic
consequences and health hazards which
.
would accompany trafficking illegally in
dangerous drugs, the court should implement
the law in the spirit with which Parliament,
after due deliberation, has amended.”
20. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also subject
of
to the limitation placed by Section 37, which commences
with the non-obstante clause. The operative part of the
said section is in the negative form prescribing the
enlargement of bail to any person accused of the
rt
commission of an offence under the Act unless twin
conditions are satisfied. The first condition is that the
prosecution must be given an opportunity to oppose the
application, and the second is that the Court must be
satisfied that there are reasonable grounds for believing
that he is not guilty of such an offence. If either of these
two conditions is not satisfied, the ban for granting bail
operates.
21. The expression “reasonable grounds” means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires
the existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on
hand, the High Court seems to have completely overlooked
the underlying object of Section 37 that, in addition to the
limitations provided under the CrPC, or any other law for
the time being in force, regulating the grant of bail, its
liberal approach in the matter of bail under the NDPS Act is
indeed uncalled for.”
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19. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
.
OnLine SC 1237, wherein it was observed at page 110:
“21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19, 24or 27-A and also for offences involving a commercial
quantity are:
(i) The Prosecutor must be given an opportunity to
of
oppose the application for bail; and
(ii) There must exist “reasonable grounds to
believe” that (a) the person is not guilty of such an
offence, and (b) he is not likely to commit any
rt offence while on bail.
22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person is not
guilty of the offence. Interpreting the standard of
“reasonable grounds to believe”, a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798: (2007) 3 SCC (Cri) 505],
held that : (SCC pp. 801-02, paras 7-8 & 10-11)
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means
something more than prima facie grounds. It connotes
substantial probable causes for believing that the
accused is not guilty of the offence charged, and this
reasonable belief contemplated, in turn, points to the
existence of such facts and circumstances as are
sufficient in themselves to justify the recording of
satisfaction that the accused is not guilty of the offence
charged.
8. The word “reasonable” has in law the prima facie
meaning of reasonable in regard to those
circumstances of which the actor, called on to act
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reasonably, knows or ought to know. It is difficult to
give an exact definition of the word “reasonable”.
‘7. … Stroud’s Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an
.
exact definition of the word “reasonable”. Reason
varies in its conclusions according to the
idiosyncrasies of the individual and the times and
circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds now
like the jingling of a child’s toy.’
[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
of
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para
7 and Gujarat Water Supply & Sewerage Board v.
Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water
Supply & Sewerage Board v. Unique Erectors (Gujarat)
rt
(P) Ltd., (1989) 1 SCC 532] ]
***
10. The word “reasonable” signifies “in accordance
with reason”. In the ultimate analysis, it is a
question of fact whether a particular act is
reasonable or not depends on the circumstances in a
given situation. (See Municipal Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]
11. The court, while considering the application for
bail with reference to Section 37 of the Act, is not
called upon to record a finding of not guilty. It is for
the limited purpose essentially confined to the
question of releasing the accused on bail that the
court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty
and records its satisfaction about the existence of
such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of acquittal
and recording a finding of not guilty.” (emphasis
supplied)
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23. Based on the above precedent, the test which the High
Court and this Court are required to apply while granting
bail is whether there are reasonable grounds to believe
that the accused has not committed an offence and
.
whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the
NDPS Act and in order to curb the menace of drug
trafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed.”
20. It was held in Union of India v. Ajay Kumar Singh, 2023
of
SCC OnLine SC 346, that bail cannot be granted without complying
with the requirement of Section 37 of the NDPS Act. It was
observed:
rt
4. This apart, it is noticed that the High Court, in passing
the impugned order of bail, had lost sight of Section 37 of
the NDPS Act, which, inter alia, provides that no person
accused of an offence involving commercial quantity shallbe released on bail unless the twin conditions laid down
therein are satisfied, namely, (i) the public prosecutor has
been given an opportunity to oppose the bail application;
and (ii) the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
offence and that he is not likely to commit any such
offence while on bail.
15. For the sake of convenience Section 37(1) is reproduced
hereinbelow: —
“37. Offences to be cognisable and non-bailable.-
(1) Notwithstanding anything contained in the
Criminal Procedure Code, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall
be cognisable;
(b) no person accused of an offence punishable
for 2[offences under section 19 or section 24 or::: Downloaded on – 21/04/2026 20:33:24 :::CIS
20
2026:HHC:12490section 27A and also for offences involving
commercial quantity] shall be released on bail or
on his own bond unless-
(i) the Public Prosecutor has been given an
.
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there
are reasonable grounds for believing that he is
not guilty of such offence and that he is not
likely to commit any offence while on bail.”
of
16. In view of the above provisions, it is implicit that no
person accused of an offence involving trade in a
commercial quantity of narcotics is liable to be released on
rt
bail unless the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
offence and that he is not likely to commit any offence
while on bail.
21. It was held in State of Meghalaya v. Lalrintluanga Sailo,
2024 SCC OnLine SC 1751, that the grant of bail without
considering Section 37 of the NDPS Act is impermissible. It was
observed:
“5. There cannot be any doubt with respect to the position
that, in cases involving the commercial quantity ofnarcotic drugs or psychotropic substances, while
considering the application of bail, the Court is bound to
ensure the satisfaction of conditions under Section
37(1)(b)(ii) of the NDPS Act. The said provision reads thus:
—
“37(1)(b)(ii)- where the Public Prosecutor opposes the
application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence::: Downloaded on – 21/04/2026 20:33:24 :::CIS
21
2026:HHC:12490and that he is not likely to commit any offence while on
bail.”
6. While considering the cases under the NDPS Act, one
cannot be oblivious of the objects and reasons for bringing
.
the said enactment after repealing the then existing laws
relating to Narcotic drugs. The object and reasons given in
the acts itself reads thus:–
“An act to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the control
and regulation of operations relating to narcotic drugs and
psychotropic substances, to provide for the forfeiture ofof
property derived from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to implement the
provisions of the International Convention on Narcotic
Drugs and Psychotropic Substances and for matters
rt
connected therewith.”
In the decision in Collector of Customs, New Delhi v.
Ahmadalieva Nodira (2004) 3 SCC 549, the three-judge
bench of this Court considered the provisions under
Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with
regard to the expression “reasonable grounds” used
therein. This Court held that it means something more
than the prima facie grounds and that it contemplates
substantial and probable causes for believing that the
accused is not guilty of the alleged offence. Furthermore, it
was held that the reasonable belief contemplated in the
provision would require the existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence.
As relates to the twin conditions under Section 37(1)(b)(ii)
of the NDPS Act, viz., that, firstly, there are reasonable
grounds for believing that the accused is not guilty of such
offence and, secondly, he is not likely to commit any
offence while on bail it was held therein that they are
cumulative and not alternative. Satisfaction of the
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22
2026:HHC:12490
existence of those twin conditions had to be based on the
‘reasonable grounds’, as referred to above.
7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC
122, after reiterating the broad parameters laid down by
.
this Court to be followed while considering an application
for bail moved by an accused involved in offences under
the NDPS Act, in paragraph 18 thereof this Court held that
the scheme of Section 37 of the NDPS Act would reveal that
the exercise of power to grant bail in such cases is not only
subject to the limitations contained under Section 439 of
the Code of Criminal Procedure, but also subject to the
of
limitation placed by Section 37(1)(b)(ii), NDPS Act.
Further, it was held that in case one of the two conditions
thereunder is not satisfied, the ban for granting bail would
operate.
rt
8. Thus, the provisions under Section 37(1)(b)(ii) of the
NDPS Act and the decisions referred supra reveal the
consistent view of this Court that while considering the
application for bail made by an accused involved in an
offence under the NDPS Act, a liberal approach ignoring
the mandate under Section 37 of the NDPS Act is
impermissible. Recording a finding mandated under
Section 37 of the NDPS Act, which is a sine qua non for
granting bail to an accused under the NDPS Act, cannot be
avoided while passing orders on such applications.”
22. In the present case, the prosecution has collected
sufficient material to, prima facie, connect the petitioner with
the commission of a crime. Hence, it cannot be said that there is
no reasonable ground to connect him with the commission of a
crime. There is nothing to show that the petitioner is not likely
to commit the offence in case of release on bail. Therefore, he
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23
2026:HHC:12490
has failed to satisfy the twin conditions laid down under Section
37 of the ND&PS Act, and he cannot be held entitled to bail.
.
23. 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. The petitioner has not filed the copies of the
order sheet to demonstrate the delay. The petitioner was prima
of
facie found in possession of a commercial quantity of charas,
and he is not entitled to bail without satisfying the twin
rt
conditions laid down under Section 37 of the NDPS Act. It was
laid down by the Hon’ble Supreme Court in Union of India vs.
Vijin K. Varghese 2025:INSC:1316 that bail cannot be granted on
the ground of prolonged incarceration without satisfying the
twin conditions laid down under Section 37 of the NDPS Act. It
was observed: –
“17. The High Court then, on the strength of those
premises, recorded a finding that there exist reasonable
grounds to believe that the applicant is not guilty of thealleged offence, treating prolonged incarceration and
likely delay as the justification for bail. Such a finding is
not a casual observation. It is the statutory threshold
under Section 37(1)(b)(ii), which would disentitle the
discretionary relief and grant of bail must necessarily rest
on careful appraisal of the material available. A conclusion
of this nature, if returned without addressing the
prosecution’s assertions of operative control and
antecedent involvement, risks trenching upon the::: Downloaded on – 21/04/2026 20:33:24 :::CIS
24
2026:HHC:12490appreciation of evidence which would be in the domain of
the trial court at first instance.
18. This Court ordinarily shows deference to the discretion
exercised by the High Court while considering the grant of.
bail. However, offences involving a commercial quantity of
narcotic drugs stand on a distinct statutory footing.
Section 37 enacts a specific embargo on the grant of bail
and obligates the Court to record satisfaction on the twinrequirements noticed above, in addition to the ordinary
tests under the Code of Criminal Procedure.
19. In the present case, the High Court has not undertaken
of
the analysis of those twin requirements with reference to
the material placed by the prosecution. The orders dated
22.01.2025 and 12.03.2025 do not advert to the allegation
regarding the respondent’s prior involvement in a seizure
rt
of narcotic drugs and psychotropic substances only days
prior to the seizure forming the subject matter of thepresent complaint, nor do they engage with the
prosecution’s assertion as to the respondent’s role in
arranging, importing, clearing and supervising the
consignments. The omission to consider these factorsbears directly upon the statutory satisfaction required by
Section 37(1)(b).”
24. A similar view was taken in Union of India v Namdeo
Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025,
wherein it was observed:
“11. In the present case, this Court finds that though the
Respondent-accused was in custody for one year, four
months, and charges have not been framed, yet the
allegations are serious inasmuch as not only is the
recovery much in excess of the commercial quantity, but
the Respondent-accused allegedly got the cavities
ingeniously fabricated below the trailer to conceal the
contraband.
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25
2026:HHC:12490
12. Prima facie, this Court is of the opinion that the
Respondent-accused is involved in drug trafficking in an
organised manner. Consequently, no case for dispensing
with the mandatory requirement of Section 37 of the NDPS.
Act is made out in the present matter.”
25. Therefore, it is impermissible to grant bail on the
ground of delay alone when the petitioner has not satisfied the
requirement of Section 37 of the NDPS Act. In Satyjeet Bhoi
of
(supra) and Jitender Kumar (supra), the accused were in custody
for more than two years and they were released on bail because of
rt
violation of their right to a speedy trial. In the present case, the
accused has remained in custody for less than one year and cited
judgment do not apply the present case.
26. It was submitted that the independent witnesses have
not supported the prosecution’s case, and there are various
contradictions in the statements of the witnesses; hence, the
petitioner is entitled to bail. This submission will not help the
petitioner. It was laid down by the Delhi High Court in Dineet v.
State (NCT of Delhi), 2025 SCC OnLine Del 8603, that the accused
cannot be released on bail because independent witnesses have
turned hostile. It was observed:
“17. Addressing Mr Mahajan’s submissions, it is pertinent
to note that nearly the entirety of the petitioner’s case
rests upon the assumption that this Court may enter into::: Downloaded on – 21/04/2026 20:33:24 :::CIS
26
2026:HHC:12490witness testimonies and evidence to determine
contradictions and the hostility of witnesses at the stage
of bail.
18. However, it is trite that the same is not within the
.
power of this Court at the stage of bail, as laid down
in Satish Jaggi v. State of Chhattisgarh (2007) 11 SCC
195 : (2008) 1 SCC (Cri) 660, paragraphs 11 and 12 of which
merit reproduction:
“11. On the aforesaid reasoning, the learned Chief
Justice thought it fit to grant bail. Mr. A.K. Ganguli,
learned Senior Counsel appearing on behalf of theof
appellant complainant, Mr. Amarendra Sharan, learned
ASG appearing on behalf of CBI and Mr. Rajiv Dutta,
learned Senior Counsel appearing on behalf of the State
of Chhattisgarh strenuously contended that having
rt
regard to the observations and findings of the learned
Chief Justice as recorded above, it clearly shows thatthe learned Chief Justice while granting bail to the
accused virtually decided the case on merit which
amounts to acquitting the accused of the criminal
charge levelled against him without trial. Per contra,Mr Vivek Tankha, learned Senior Counsel, contended
that now the evidence is closed, so there is no question
of the accused tampering with the prosecutionwitnesses or fleeing from justice. He further contended
that now the arguments in the case have finally started,and the arguments of the prosecution are over, and
only the defence is to give its reply. He, accordingly,
contended that the bail granted by the learned ChiefJustice need not be disturbed.
12. Normally, if the offence is non-bailable, bail can
also be granted if the facts and circumstances so
demand. We have already observed that in granting bail
in a non-bailable offence, the primary consideration is
the gravity and the nature of the offence. A reading of
the order of the learned Chief Justice shows that the
nature and the gravity of the offence and its impact on
the democratic fabric of the society were not at all::: Downloaded on – 21/04/2026 20:33:24 :::CIS
27
2026:HHC:12490considered. We are more concerned with the
observations and findings recorded by the learned Chief
Justice on the credibility and the evidential value of the
witnesses at the stage of granting bail. By making such.
observations and findings, the learned Chief Justice has
virtually acquitted the accused of all the criminal
charges levelled against him even before the trial. The
trial is in progress, and if such findings are allowed tostand, it would seriously prejudice the prosecution’s
case. At the stage of granting bail, the court can only go
into the question of the prima facie case established forof
granting bail. It cannot go into the question of the
credibility and reliability of the witnesses put up by the
prosecution. The question of credibility and reliability
of prosecution witnesses can only be tested during the
rt
trial.”
19. By virtue of the aforementioned paragraphs from the
Hon’ble Supreme Court’s decision in Satish Jaggi, it is
evinced that this Court, at the stage of Bail, cannot look
into the allegations of PW2 being a witness who has turned
hostile, nor apply its mind to alleged contradictions in his
statement under Section 161 of the CrPC when compared
with his testimony in Court, as the same would amount to
appreciation of the evidentiary value of his statement and
testimony, and this is an exercise that is only to be
conducted during the course of trial.
20. The same has been relied upon by the Hon’ble
Supreme Court in the judgment of State of Karnataka v. Sri
Darshan 2025 SCC OnLine SC 1702, with the following
paragraphs of this decision reproduced for ready
reference:
“20.2.5. Further, such an approach of the High Court is
contrary to the judicial precedents of this court,
including Satish Jaggi v. State of Chhattisgarh (supra),
Kanwar Singh Meena v. State of Rajasthan4, wherein, it
was held that courts, while considering bail, should not
assess the credibility of witnesses, as this function squarely
lies within the domain of the trial Court. Thus, the::: Downloaded on – 21/04/2026 20:33:24 :::CIS
28
2026:HHC:12490impugned order of the High Court violates this principle by
commenting on the delay in the witness statements and
imputing a lack of credibility at this stage” (emphasis
supplied).
*****
“20.3.6. In the present case, the High Court also
proceeded to analyse and discount the credibility ofcertain prosecution witnesses and forensic material. It
observed contradictions in the eyewitness statements
concerning the overt acts of the accused (para 26). It
expressed doubts about the prosecution’s explanationof
for the delay in recording the statements of CW. 76 and
CW. 91 (para 27). It questioned the timing of the
doctor’s supplementary opinion and weighed its
evidentiary worth (para 31). As already pointed out, the
rt
credibility or reliability of witnesses is a matter for the trial
Court to determine after full-fledged cross-examination. Itis a trite law that statements recorded under section 161 Cr.
P.C. are not substantive, and their evidentiary value can
only be determined after cross-examination during trial.
Any opinion rendered at the bail stage risks prejudging theoutcome of the trial and must be avoided. Thus, the court’s
assessment of these aspects amounts to a premature
appreciation of the probative value of prosecutionevidence.” (emphasis supplied)
*****“24. On a cumulative analysis, it is evident that the
order of the High Court suffers from serious legalinfirmities. The order fails to record any special or
cogent reasons for granting bail in a case involving
charges under Sections 302, 120B, and 34 IPC. Instead,
it reflects a mechanical exercise of discretion, marked
by significant omissions of legally relevant
facts. Moreover, the High Court undertook an extensive
examination of witness statements at the pre-trial stage,
highlighting alleged contradictions and delays – issues that
are inherently matters for the trial Court to assess through::: Downloaded on – 21/04/2026 20:33:24 :::CIS
29
2026:HHC:12490cross-examination. The trial Court alone is the appropriate
forum to evaluate the credibility and reliability of
witnesses. Granting bail in such a serious case, without
adequate consideration of the nature and gravity of the.
offence, the accused’s role, and the tangible risk of
interference with the trial, amounts to a perverse and
wholly unwarranted exercise of discretion. The well-
founded allegations of witness intimidation, coupledwith compelling forensic and circumstantial evidence,
further reinforce the necessity for cancellation of bail.
Consequently, the liberty granted under the impugnedof
order poses a real and imminent threat to the fair
administration of justice and risks derailing the trial
process. In light of these circumstances, this Court is
satisfied that the present case calls for the exercise of
rt
its extraordinary jurisdiction under Section 439(2) Cr.
P.C.” (emphasis supplied)
21. Drawing inspiration from the judgment in Darshan, the
hostility of a witness cannot be interpreted as an
automatic declaration of the prosecution’s case as
unconvincing, and thereby, in essence, result in the
conduction of a mini-trial at the stage of bail and return
findings upon the ex facie merit of the accused’s
innocence/guilt.
27. It was laid down by the Hon’ble Supreme Court in X
Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in
serious offences, the Trial Court or the High Court should not
entertain the bail application of the accused after the
commencement of the trial and grant bail because of some
discrepancy in the testimony. It was observed: –
“14. Ordinarily, in serious offences like rape, murder,
dacoity, etc., once the trial commences and the::: Downloaded on – 21/04/2026 20:33:24 :::CIS
30
2026:HHC:12490prosecution starts examining its witnesses, the Court, be it
the Trial Court or the High Court, should be loath to
entertain the bail application of the Accused.
15. Over a period of time, we have noticed two things, i.e.,
.
(i) either bail is granted after the charge is framed and just
before the victim is to be examined by the prosecution
before the trial court, or (ii) bail is granted once the
recording of the oral evidence of the victim is complete bylooking into some discrepancies here or there in the
deposition and thereby testing the credibility of the victim.
16. We are of the view that the aforesaid is not a correct
of
practice that the Courts below should adopt. Once the trial
commences, it should be allowed to reach its conclusion,
which may either result in the conviction of the Accused or
the acquittal of the Accused. The moment the High Court
rt
exercises its discretion in favour of the Accused and orders
the release of the Accused on bail by looking into the
deposition of the victim, it will have its own impact on the
pending trial when it comes to appreciating the oral
evidence of the victim. It is only if the trial gets unduly
delayed and that, too, for no fault on the part of the
Accused, the Court may be justified in ordering his release
on bail on the ground that the right of the Accused to have
a speedy trial has been infringed.”
28. Similarly, it was held by this Court in Suraj Singh v.
State of H.P., 2022 SCC OnLine HP 268 that the Court exercising
bail jurisdiction cannot appreciate the contradictions in the
evidence. It was observed:
10. Petitioner has placed reliance on the statements of
witnesses already recorded by the learned Special Judge, in
support of his argument to the effect that, from perusal of
these statements, reasonable grounds can be entertained
for concluding prima facie innocence of the petitioner. The
arguments raised on behalf of the petitioner deserve to be::: Downloaded on – 21/04/2026 20:33:24 :::CIS
31
2026:HHC:12490rejected for the reason that this Court, while dealing with
the bail application, will not appreciate the evidence being
recorded during the trial. Undisputedly, only some of the
witnesses out of the entire list of witnesses relied upon by.
the prosecution have been examined. In these
circumstances, it is not prudent to form any opinion as to
the innocence or guilt of the petitioner on the basis of such
partial evidence.
29. It was laid down by the Hon’ble Supreme Court in
Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795:
of
(2012) 3 SCC (Cri) 1062: 2012 SCC OnLine SC 704 that the scope ofthe bail application is limited and the Court cannot appreciate
rt
the evidence while deciding the bail application. It was observedat page 799:
“10…. Moreover, while considering the bail application,
the scope for the appreciation of evidence and othermaterial on record is limited. The court is not expected to
indulge in critical analysis of the evidence on record…”
30. Therefore, the petitioner cannot be released on bail
because independent witnesses have not supported the
prosecution’s case.
31. No other point was urged.
32. In view of the above, the petitioner is not entitled to
bail. Hence, the present petition fails, and it is dismissed.
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2026:HHC:12490
33. The observation made hereinbefore shall remain
confined to the disposal of the instant petition and will have no
.
bearing whatsoever on the merits of the case.
(Rakesh Kainthla)
Judge
21st April, 2026.
(ravinder)
of
rt
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