inkinccorporation@gmail.com Himachal Pradesh High Court
Reserved On: 23.02.2026 vs Of on 27 February, 2026
2026:HHC:4648
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2844 of 2025
.
Reserved on: 23.02.2026
Date of Decision: 27.02.2026
Mukesh Thakur ...Petitioner
Versus
of
State of Himachal Pradesh ...Respondent
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr N.K. Thakur, Senior
Advocate with Mr Karanveer
Singh, Advocate.
For the Respondent/State : Mr Jitender Sharma,
Additional Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in F.I.R. No. 112 of 2024, dated 25.09.2024,
registered in Police Station Palampur, for the commission of
offences punishable under Sections 20 and 29 of the Narcotic
Drugs and Psychotropic Substances Act (NDPS).
2. It has been asserted that, as per the prosecution, the
police intercepted a car, which was being driven by Amar Singh,
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2
and the petitioner was sitting on the passenger seat. The police
checked the car and found 1.412 kgs of charas concealed in a
.
chamber behind the left headlight of the vehicle. The petitioner
is innocent. No recovery was effected from him. The vehicle was
registered in the name of the father of the co-accused. The story
put forth by the prosecution does not inspire confidence. The
of
petitioner would abide by the terms and conditions that the
Court may impose. Hence, it was prayed that the present petition
rt
be allowed and the petitioner be released on bail.
3. The petition is opposed by filing a status report
asserting that police had set up a naka on 25.09.2024 at about
12:30 AM at Chadiyar Chowk. The vehicle bearing registration
No. HP66-3489 came from Baijnath at about 3:40 am. The police
signalled the driver to stop the vehicle. The driver stopped the
vehicle and identified himself as Amar Singh. The petitioner was
sitting on the passenger seat, and he identified himself as
Mukesh Thakur. The police checked the vehicle in the presence
of an independent witness and Constable Dev Raj and recovered
four packets concealed behind the front headlight. These were
checked and found to contain 1.374 kgs of charas. The police
arrested the occupants of the vehicle and seized the charas. The
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charas was sent to the SFSL, Junga and as per the report of
analysis, it was found to be an abstract of cannabis and a sample
.
of charas. The charge sheet was filed before the Court on
24.03.2025, and the matter was listed for recording the
statements of prosecution witnesses on 19.12.2025. Hence, the
status report.
of
4. I have heard Mr N.K. Thakur, learned Senior
Advocate, with Mr Karanveer Singh, learned counsel for the
rt
petitioner, and Mr Jitender Sharma, learned Additional Advocate
General for the respondent/State.
5. Mr N.K. Thakur, learned Senior Counsel for the
petitioner, submitted that the petitioner is innocent and that he
was falsely implicated. The police effected the recovery from a
chamber behind the front headlight. The petitioner could not
have any knowledge regarding the concealment of charas behind
the front headlight. The police have failed to collect any material
to connect the petitioner to the commission of a crime. The
charge sheet has been filed before the Court, and no fruitful
purpose would be served by detaining the petitioner in custody.
Hence, he prayed that the present petition be allowed and the
petitioner be released on bail.
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6. Mr Jitender Sharma, learned Additional Advocate
General for the respondent/State, submitted that the petitioner
.
was found travelling in a vehicle in the middle of the night at a
place far away from his home. He has not provided any
explanation regarding his presence in the vehicle. Prima-facie
he is to be treated to be in possession of the substance found in
of
the vehicle. The quantity of charas recovered by the police from
the vehicle is commercial, and the rigours of Section 37 of the
rt
NDPS Act apply to the present case. The petitioner has failed to
satisfy the twin conditions laid down in Section 37 of the NDPS
Act; 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. In Gudikanti Narasimhulu 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 under trial, has laid down the key factors that::: Downloaded on – 27/02/2026 20:35:48 :::CIS
5should 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, also
bears 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.
of
[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
rt
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 thereof, the severity of the punishment which
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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
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)
rt
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
of
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
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 discretionjudiciously, 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 othercircumstances, 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 – 27/02/2026 20:35:48 :::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
of
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
rt
35)
“35. While we are conscious of the fact that liberty of an
individual is an invaluable right, at the same time while
considering 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
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)
9. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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10. The status report shows that the petitioner was
travelling in the vehicle from which the recovery of 1.374 kgs of
.
charas was made. The petitioner and the co-accused are the
resident of village Hathithan. They were apprehended at
Chadiyar within the jurisdiction of Police Station Palampur at a
place far away from their home at about 3:40 am. The petitioner
of
has not provided any explanation for his presence in the vehicle.
In Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri)
rt
1664: 2003 SCC OnLineSC 874, the contraband was recovered
from a vehicle, and it was held that all the occupants of the
vehicle would be in conscious possession of the contraband. It
was observed:
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. Thefacts which can be culled out from the evidence on record
are that all the accused persons were travelling in a
vehicle, and as noted by the trial court, they were knownto each other, and it has not been explained or shown as
to how they travelled together from the same destination
in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles
an offence. Section 20 appears in Chapter IV of the Act,
which relates to offences for possession of such articles.
It is submitted that to make the possession illicit, there
must be conscious possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element, i.e., conscious::: Downloaded on – 27/02/2026 20:35:48 :::CIS
10possession and not mere custody without awareness of
the nature of such possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term
.
that assumes different colours in different contexts. It
may carry different meanings in contextually different
backgrounds. It is impossible, as was observed in the
Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil KumarBhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC
52] to work out a completely logical and precise definition
of “possession” uniformly applicable to all situations inof
the context of all statutes.
23. The word “conscious” means awareness of a
particular fact. It is a state of mind which is deliberate or
rt
intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC
194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a
given case need not be physical possession but can be
constructive, having power and control over the article in
the case in question, while the person to whom physicalpossession is given holds it subject to that power or
control.
25. The word “possession” means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561: 1973
AC 498: (1972) 2 WLR 1306 (HL)] ). In an interesting case,
it was observed that where a person keeps his firearm in
his mother’s flat, which is safer than his own home, hemust be considered to be in possession of the same. (See
Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB
966: (1976) 2 WLR 361 (QBD)].)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of Section
54, where a presumption is also available to be drawn
from possession of illicit articles.
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27. In the factual scenario of the present case, not only
possession but conscious possession has been
established. It has not been shown by the accused-
.
appellants that the possession was not conscious in the
logical background of Sections 35 and 54 of the Act.”
11. Therefore, prima facie, the petitioner was in
possession of the charas, and the burden would shift upon him
to show that he was not in conscious possession as per Sections
of
35 and 54 of the NDPS Act.
12. There is no material to rebut the presumption at this
rt
stage. Hence, the prosecution’s version has to be prima facie
accepted as correct that the petitioner was found in possession
of a commercial quantity of charas, and the rigours of Section 37
of the NDPS Act apply to the present case.
13. Section 37 of the NDPS 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. It
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
of
are reasonable grounds for believing that he
is not guilty of such an offence and that he is
rt not likely to commit any offence while on
bail.
(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.”
14. 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. 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,::: Downloaded on – 27/02/2026 20:35:48 :::CIS
13(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
of
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
rt 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.”
15. 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 movedby the accused involved in offences under the NDPS Act.
In Union of India vs Ram Samujh and Ors., (1999) 9 SCC429, 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
murder case, 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::: Downloaded on – 27/02/2026 20:35:48 :::CIS
14the 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 succinctlyobserved about the adverse effect of such activities
in Durand Didier vs Chief Secy. Union Territory of Goa,
(1990) 1 SCC 95) as under:
of
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
rt country and illegal trafficking in such drugs
and substances have led to drug addictionamong a sizeable section of the public,
particularly the adolescents and students of
both sexes and the menace has assumed
serious and alarming proportions in therecent years. Therefore, in order to effectively
control and eradicate this proliferating and
booming devastating menace, causingdeleterious 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 mandatoryminimum imprisonment 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 mandatory conditions provided in Section 37,
namely,
(i) there are reasonable grounds for believing
that the accused is not guilty of such offence;
and
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15
(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
of
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
rt
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
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 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
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16
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.”
16. 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:
of
“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:
rt
(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 anyoffence 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.
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17
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
of
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.’
rt
[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] ]
***
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, 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
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18
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
of
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.”
17.
rt
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:
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 personaccused of an offence involving commercial quantity shall
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)-
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19
(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
of
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there
rt 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 offence and that he is not likely to commit any
offence while on bail.
18. 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
of narcotic 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:–
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20
“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:–
of
“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
rt
drugs and psychotropic substances, to provide for the
forfeiture of property derived from, or used in, illicit traffic
in narcotic drugs and psychotropic substances, toimplement the provisions of the International Convention
on Narcotic Drugs and Psychotropic Substances and for
matters 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 underSection 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with
regard to the expression “reasonable grounds” usedtherein. This Court held that it means something more
than the prima facie grounds and that it contemplates
substantial and probable causes for believing that theaccused 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::: Downloaded on – 27/02/2026 20:35:48 :::CIS
21commit 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
of
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 limitation placed by Section 37(1)(b)(ii),
rt
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
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.”
19. 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 would 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.
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22
20. 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
of
Court in Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372:
2024 SCC OnLine SC 3848 that in cases under the NDPS Act
rt
involving the commercial quantity, the negation of bail is therule 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
this Court that in the NDPS cases, where the offence is
punishable with a minimum sentence of ten years, theaccused shall generally not be released on bail. Negation of
bail is the rule, and its grant is an exception. While consider-
ing the application for bail, the court has to bear in mind
the provisions of Section 37 of the NDPS Act, which aremandatory in nature. The recording of findings as man-
dated in Section 37 is a sine qua non for granting bail to
the accused involved in the offences under the said Act.”
21. No other point was urged.
22. In view of the above, the present petition fails, and it
is dismissed.
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23
23. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
.
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
of
27th February, 2026
(Nikita)
rt
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