Himachal Pradesh High Court
Reserved On: 18.3.2026 vs Of on 31 March, 2026
2026:HHC:9406
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 332 of 2026
.
Reserved on: 18.3.2026
Date of Decision: 31.3.2026.
Akash Goyal ....Petitioner
Versus
of
State of HP .... Respondent
Coram rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr Ajay Kochhar, Senior Advocate,
with M/s Varun Chauhan, Anubhav
Chopra and Bhairav Gupta,
Advocates.
For the Respondent/State: Mr Jitender K. Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in FIR No. 267 of 2025, dated 4.12.2025,
registered at Police Station Paonta Sahib, District Sirmour, H.P.,
for the commission of offences punishable under Sections 22 and
29 of the Narcotic Drugs and Psychotropic Substances (NDPS)
Act.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that, as per the prosecution’s
story, the police were on patrolling duty on 3.12.2025. They
.
received a secret information at about 7.40 PM at Batapul, Paonta
Sahib, that a vehicle bearing registration No. HR-51BS-9267,
occupied by Arjun and Rahul Kapoor, was transporting a huge
consignment of prohibited capsules and tablets from Haryana,
of
which could be recovered by searching the vehicle. The police
joined Joginder Singh as an independent witness, set up a naka
rt
ahead of the Behral check post, and intercepted the vehicle. The
driver identified himself as Arjun, and the person sitting beside
the driver identified himself as Rahul Kapoor. The police
searched the vehicle and recovered a bag. The police checked the
bag and found 4560 capsules of Tramadol bearing the name
Proxyohm spas and 3000 tablets of Alprazolam. The police
arrested the occupants. They revealed during interrogation that
they had given an amount of ₹1.00 lac to the petitioner for the
purchase of drugs, and the drugs were supplied in an auto
rickshaw bearing registration no. UP-11CT-5520. The police
raided the petitioner’s house on 5.12.2025 and 20.12.2025, but
could not recover any incriminating material. The police arrested
the petitioner based on the statement made by the co-accused,
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which is inadmissible in evidence. The petitioner has no concern
with the commission of a crime. He is 31 years of age. He has old
.
parents to look after. He 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
of
asserting that the police were on patrolling duty on 3.12.2025.
When they reached Batapul at 7.40 PM, they received a secret
rt
information that a vehicle bearing registration No. HR-51-BS-
9267 was transporting a huge quantity of capsules and tablets.
Arjun and Rahul Kapoor were travelling in the vehicle. The
information was credible, and it was reduced to writing. It was
sent to Sub Divisional Police Officer (SDPO), Paonta Sahib. The
police stopped Joginder Singh on the way and set up a naka ahead
of the Behral check post. The vehicle bearing registration No.
HR-51-BS-9267 was intercepted at 8.30 PM. The driver
identified himself as Arjun, and the person sitting beside the
driver identified himself as Rahul Kapoor. The police searched
the vehicle and recovered 4560 capsules of Tramadol and 3000
tablets of Alprazolam. The police arrested the occupants and
seized the capsules and the tablets. The police interrogated
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Arjun, who revealed that he had paid ₹1.00 lac to the petitioner
for purchasing the capsules and the tablets, and these were
.
transported in an auto rickshaw bearing registration No. UP-
11CT-5520. The accused Arjun also identified the place where the
capsules and tablets were loaded in the vehicle. The police seized
the mobile phones. The capsules and tablets were sent to FSL,
of
and as per the report, the capsules contained 2.253 kilograms of
Tramadol and the tablets contained 420 grams of Alprazolam.
rt
The investigation is complete, and the charge sheet shall be filed
before the Court. Hence, the petition.
4. I have heard Mr Ajay Kochhar, learned Senior
Counsel, assisted by M/s Varun Chauhan, Anubhav Chopra and
Bhairav Gupta, learned counsel for the petitioner and Mr Jitender
Sharma, learned Additional Advocate General for the
respondent/State.
5. Mr Ajay Kochhar, learned Senior Counsel for the
petitioner, submitted that the petitioner is innocent and he was
falsely implicated. There is no evidence against the petitioner
except the statement made by the co-accused, which is
inadmissible in evidence. Therefore, he prayed that the present
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petition be allowed and the petitioner be released on bail. He
relied upon the judgment of this Court titled Kashin Kashyap Vs.
.
State of HP 2026:HHC:3000 in support of his submission.
6. Mr Jitender K. Sharma, learned Additional Advocate
General for the respondent/State, submitted that the WhatsApp
chat of the accused Arjun shows that he had talked to the
of
petitioner about the sale/purchase of the capsules. Therefore,
there is sufficient material to connect the petitioner to the
rt
commission of crime. The quantity of the Tramadol and
Alprazolam is commercial, and the rigours of Section 37 of the
NDPS Act apply to the present case. Hence, he prayed that the
present petition be dismissed.
7. I have given 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:
(i) Broad principles for the grant of bail
56. InGudikantiNarasimhulu v. High Court of A.P., (1978) 1
SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while
elaborating on the content of Article 21 of the Constitution
of India in the context of personal liberty of a person::: Downloaded on – 31/03/2026 20:40:19 :::CIS
6under 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 the
vital 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 benignantof
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.]
rt
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,
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
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
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
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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
of
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
rt
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
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
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
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)
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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
of
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
rt
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
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;
(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::: Downloaded on – 31/03/2026 20:40:19 :::CIS
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(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 2856of
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)
rt
“35. While we are conscious of the fact that liberty of an
individual is an invaluable right, at the same time whileconsidering 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 orvexatious 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 thegrant of bail, a prima facie conclusion must be supported
by reasons and must be arrived at after having regard tothe vital facts of the case brought on record. Due
consideration must be given to facts suggestive of thenature 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)
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
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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 of
fleeing from justice or thwarting the course of justice orcreating other troubles in the shape of repeating offences
or intimidating witnesses and the like, by the petitioner
who seeks enlargement on bail from the Court. We do notof
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.
rt
So also, the heinousness of the crime….”
10. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
11. The photographs of the WhatsApp conversation
between the petitioner and the co-accused Arjun show that they
had chatted about the delivery of the capsules. The photographs
of the capsules, the number of boxes and the price were shared;
therefore, the submission that the petitioner is being implicated
based on the statement made by the co-accused is not correct.
The police have Whatsapp conversion showing that the capsules
and the tablets were supplied by the petitioner to the co-accused.
Therefore, there is sufficient material to connect the petitioner
to the commission of crime.
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12. The status report shows that the quantity of Tramadol
was found to be 2.253 kilograms. The Central Government has
.
notified 250 grams of Tramadol as a commercial quantity;
therefore, the co-accused was found in possession of a
commercial quantity of Tramadol, and the rigours of Section 37
of the NDPS Act apply to the present case.
of
13. This Section was interpreted by the Hon’ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
rt
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. It was
observed:
“7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certainoffences enumerated under the said Section. They are:
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,
(3) Under Section 27A and
(4) offences involving a 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
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to be mandatorily satisfied in addition to the normal
requirements under the provisions of the Cr.P.C. or any
other enactment.
.
(1) The court must be satisfied that there are
reasonable grounds for believing that the
person is not guilty of such an offence;
(2) that person is not likely to commit any offence
while on bail.”
14. This position was reiterated in State of Kerala Versus
of
Rajesh, AIR 2020 SC 721, wherein it was held:
“19. This Court has laid down broad parameters to be
rt
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act. InUnion 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 andfollowed. It should be borne in mind that in a
murder case, the accused commits the murder of
one or two persons, while those persons who aredealing 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 deadlyimpact on the society; they are a hazard to the
society; even if they are released temporarily, in all
probability, they would continue their nefarious
activities of trafficking 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:
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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 country.
and illegal trafficking in such drugs and
substances have led to drug addiction among
a sizeable section of the public, particularlythe adolescents and students of both sexes
and the menace has assumed serious and
alarming proportions in the recent years.
of
Therefore, in order to effectively control and
eradicate this proliferating and booming
devastating menace, causing deleterious
rt effects and a deadly impact on society as a
whole, Parliament, in its wisdom, has made
effective provisions by introducing Act 81 of1985 specifying mandatory minimum
imprisonment and fine.
8. To check the menace of dangerous drugs
flooding the market, Parliament has provided thatthe person accused of offences under the NDPS Act
should not be released on bail during trial unless
the mandatory conditions 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
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
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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
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
commission of an offence under the Act unless the two
of
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
rt
that he is not guilty of such an offence. If either of these
two conditions is not satisfied, the ban on 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 at
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.”
15. 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:
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“21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19, 24
or 27-A and also for offences involving a commercial
quantity are:
.
(i) The Prosecutor must be given an opportunity to
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
offence while on bail.
of
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
rt
“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
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
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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
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)
(P) Ltd., (1989) 1 SCC 532] ]
***
of
10. The word “reasonable” signifies “in accordance
with reason”. In the ultimate analysis, it is a
question of fact whether a particular act is
rt
reasonable or not, which 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)
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
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trafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed.”
16. It was held in Union of India v. Ajay Kumar Singh, 2023
.
SCC OnLine SC 346, that bail cannot be granted without complying
with the requirement of Section 37 of the NDPS Act. It was
observed:
of
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 shall
rt
be released on bail unless the twin conditions laid down
therein are satisfied, namely, (i) the public prosecutor hasbeen 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 offences under section 19 or section 24 or
section 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::: Downloaded on – 31/03/2026 20:40:19 :::CIS
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(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.”
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
bail unless the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
of
offence and that he is not likely to commit any offence
while on bail.
17. It was held in State of Meghalaya v. Lalrintluanga Sailo,
rt
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 toensure 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
and 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 themselves read thus: —
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“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 of.
property derived from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to implement the
provisions of the International Convention on NarcoticDrugs and Psychotropic Substances and for matters
connected therewith.”
In the decision in Collector of Customs, New Delhi v.
of
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
rt
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
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
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20
subject to the limitations contained under Section 439 of
the Code of Criminal Procedure, but also subject to the
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 on granting bail would
operate.
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
of
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
rt
granting bail to an accused under the NDPS Act, cannot be
avoided while passing orders on such applications.”
18. In the present case, the prosecution has collected
sufficient material to prima facie connect the petitioner with the
commission of the crime. There is nothing on record to show
that the petitioner will not indulge in the commission of an
offence if released on bail. Hence, he has not satisfied the twin
conditions laid down in Section 37 of the ND&PS Act.
19. It was submitted that the bail is a Rule and Jail is an
exception, and the petitioner is entitled to bail on this
consideration. This submission will not help the petitioner, as he
is prima facie involved in the commission of an offence
punishable under Section 20 of the NDPS Act involving the
commercial quantity. It was laid down by the Hon’ble Supreme
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21
Court in Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372: 2024
SCC OnLine SC 3848 that in cases under the NDPS Act involving
.
the commercial quantity, the negation of bail is the rule and its
grant an exception. It was observed at page 381:
“Compliance with the mandate under Section 37
9. There has been a consistent and persistent view of
of
this Court that in the NDPS cases, where the offence is
punishable with a minimum sentence of ten years, the
accused shall generally not be released on bail. Negation of
bail is the rule, and its grant is an exception. While
rt
considering the application for bail, the court has to bear
in mind the provisions of Section 37 of the NDPS Act,which are mandatory in nature. The recording of findings
as mandated in Section 37 is a sine qua non for granting
bail to the accused involved in the offences under the said
Act.”
20. No other point was urged.
21. In view of the above, the present petition fails, and it
is dismissed.
22. The observations made here-in-above are regarding
the disposal of this petition and will have no bearing,
whatsoever, on the case’s merits.
(Rakesh Kainthla)
Judge
31st March, 2026
(Chander)
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