Himachal Pradesh High Court
Reserved On: 25.3.2026 vs Of on 31 March, 2026
2026:HHC:9405
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 290 of 2026
.
Reserved on: 25.3.2026
Date of Decision: 31.3.2026.
Bhupinder Thakur ....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 Vikas Rajput, Advocate.
For the Respondents : Mr Ajit Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in FIR No. 233 of 2024, dated 19.10.2024,
registered at Police Station Nurpur, District Kangra, H.P., for the
commission of offences punishable under Sections 20, 25 and 29
of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
2. It has been asserted that, as per the prosecution’s
story, the police received information on 18.10.2024 that the
petitioner and Jitender Kumar were transporting charas in a
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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vehicle bearing registration No. T0424CH6911A. The police found
the vehicle parked on the Kangra-Pathankot Road at about 2.00
.
AM. The petitioner and Jitender were sitting in the vehicle. The
police searched the vehicle and recovered 3.575 kilograms of
charas. The police arrested the petitioner and the co-accused and
seized the charas. The prosecution’s case is false, and no case is
of
made out against the petitioner. The petitioner has been in
custody since 19.10.2024. The investigation is complete, and the
rt
charge sheet has been filed before the Court. The matter was
listed for recording the statements of prosecution witnesses on
25.3.2026. The statements of ten witnesses have been recorded.
No fruitful purpose would be served by detaining the petitioner
in custody. The 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 were on patrolling duty on 18.10.2024.
They received secret information at about 12.30 AM that a vehicle
bearing registration No. T0424CH6911A, being driven by
Bhupinder, was transporting a huge quantity of charas. The
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co-accused Jitender Thakur was also travelling in the vehicle,
and a huge quantity of charas could be recovered by searching
.
the vehicle. The information was credible. The information was
reduced into writing and was sent to the Sub Divisional Police
Officer (SDPO), Nurpur. The police reached Jonta at about 2.00
AM and found a vehicle bearing registration No. TO424CH6911A
of
parked on road side. Mohinder Singh Up-Pradhan was called to
the spot, and the police enquired about the names of the
rt
occupants of the vehicle. The driver identified himself as
Bhupinder Thakur (the present petitioner), and the person
sitting beside the driver identified himself as Jitender Thakur.
The police searched the vehicle and recovered seven packets
containing 3.575 kilograms of charas. The police seized the
charas and arrested the occupants of the vehicle. The charas was
sent to FSL, and as per the report, it was confirmed to be an
extract of cannabis and a sample of charas. The police also
arrested Desh Raj. Ankush Sharma, one of the accused, could not
be arrested. FIR No. 52 of 2018, dated 9.3.2018 was registered
against the petitioner. The statements of fourteen witnesses
have been recorded, and the statements of twelve witnesses are
to be recorded. The petitioner would indulge in the commission
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of similar offence in case of his release on bail. Hence, the status
report.
.
4. I have heard Mr Vikas Rajput, learned counsel for the
petitioner and Mr Ajit Sharma, learned Deputy Advocate General
for the respondent/State.
of
5. Mr. Vikas Rajput, learned counsel for the petitioner,
submitted that the petitioner is innocent and he was falsely
rt
implicated. The petitioner was found in the vehicle, which is not
sufficient to connect him to the commission of the crime. The
police have filed a charge sheet, 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.
6. Mr. Ajit Sharma, learned Deputy Advocate General for
the respondent/State, submitted that the petitioner was driving
the vehicle from which the commercial quantity of Charas was
recovered. The burden is upon him under Sections 35 and 54 of
the NDPS Act to prove that the possession was not conscious. He
has not produced any material to discharge the burden. The
petitioner has not satisfied the twin conditions laid down under
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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
of
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:
rt
(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 should beconsidered 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, 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.
[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
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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
of
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)
rt
“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 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
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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 caseof
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
rt
the grant of bail. The nature of the offence is one of the
basic considerations for the grant of bail — the moreheinous 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 the
offence;
(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
released on bail;
rt
(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 exerciseof 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
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,::: Downloaded on – 31/03/2026 20:40:18 :::CIS
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2026:HHC:9405when 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
of
conviction vis-Ã -vis the offence(s) alleged against an
accused.” (emphasis supplied)
9. Hon’ble Supreme Court held in State of Rajasthan v.
rt
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 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 notintend 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….”
10. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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11. The status report mentions that the petitioner was
driving the vehicle from which the recovery of 3.575 kilograms of
.
charas was made. Both the petitioner and the co-accused Jitender
Thakur are residents of the same village. They were found in the
middle of the night in a vehicle with the charas at a considerable
distance from their home. Therefore, prima facie, the petitioner is
of
to be treated as in possession of the charas. In Madan Lal versus
State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC
rt
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 avehicle, and as noted by the trial court, they were known
to each other, and it has not been explained or shown as to
how they travelled together from the same destination in avehicle 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
possession and not mere custody without awareness of the
nature of such possession, Section 20 is not attracted.
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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 Kumar
Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC
52] to work out a completely logical and precise definitionof “possession” uniformly applicable to all situations in
the context of all statutes.
23. The word “conscious” means awareness of a particular
of
fact. It is a state of mind which is deliberate or 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
rt
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 hismother’s flat, which is safer than his own home, he must
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.
27. In the factual scenario of the present case, not only
possession but conscious possession has been established.
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2026:HHC:9405possession was not conscious in the logical background of
Sections 35 and 54 of the Act.”
12. The quantity of charas stated to be in possession of
.
the petitioner was more than the commercial quantity, 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
of
involving a commercial quantity, the Court should be satisfied
that the accused is not guilty of the commission of an offence and
rt
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.
(b) no person accused of an offence punishable for
offences under section 19, section 24, or section
27A and also for offences involving commercialquantity, 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
is not guilty of such an offence and that he is
not likely to commit any offence while on
bail.
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(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
of
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
rt
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,(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
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;
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(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 moved
by the accused involved in offences under the NDPS Act. In
Union of India vs Ram Samujh and Ors., (1999) 9 SCC 429, itof
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
rt
followed. It should be borne in mind that in a
murder case, the accused commits the murder ofone 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 arevulnerable; 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 allprobability, they would continue their nefarious
activities of trafficking and/or dealing in intoxicantsclandestinely. The reason may be the large stake and
illegal profit involved. This Court, dealing with the
contention with regard to punishment under theNDPS 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 country
and illegal trafficking in such drugs and
substances have led to drug addiction among
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and the menace has assumed serious and
alarming proportions in the recent years.
Therefore, in order to effectively control and.
eradicate this proliferating and booming
devastating menace, causing deleterious
effects and a deadly impact on society as awhole, Parliament, in its wisdom, has made
effective provisions by introducing Act 81 of
1985 specifying mandatory minimumof
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
rtshould 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 hasnot given any justifiable reason for not
abiding by the aforesaid mandate whileordering the release of the respondent
accused on bail. Instead of attempting to take
a holistic view of the harmful socio-economicconsequences 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
to the limitation placed by Section 37, which commences
with the non-obstante clause. The operative part of the
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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.
of
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
rt
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.”
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:
“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::: Downloaded on – 31/03/2026 20:40:18 :::CIS
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(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.
.
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],
of
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
rt
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
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.
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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.
of
[Municipal Corpn. of Greater Mumbai v. Kamla Mills
Ltd. (2003) 6 SCC 315]
11. The court, while considering the application for
rt
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
trafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed.”
17. It was held in Union of India v. Ajay Kumar Singh, 2023
SCC OnLine SC 346, that bail cannot be granted without complying
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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 hasof
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
rt
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 oron 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.”
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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
of
considering Section 37 of the NDPS Act is impermissible. It was
observed: rt
“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: —
“37(1)(b)(ii)- where the Public Prosecutor opposes the
application, the court is satisfied that there are reasonablegrounds 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: —
“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 Narcotic Drugs and Psychotropic
Substances and for matters connected therewith.”
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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, itwas held that the reasonable belief contemplated in the
provision would require the existence of such facts and
circumstances as are sufficient in themselves to justifyof
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,
rt
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 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 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.”
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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 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.
of
20. It was submitted that the bail is a Rule and Jail is an
exception, and the petitioner is entitled to bail on this
rt
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
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 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 considering the application for
bail, the court has to bear in mind the provisions of Section 37
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2026:HHC:9405of 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.”
.
21. It was submitted that there is a delay in the progress
of the trial, and the petitioner’s right to a speedy trial is being
violated. This submission cannot be accepted. The status report
shows that statements of fourteen witnesses out of twenty-six
of
have been recorded, and the matter was listed for recording the
statements of the prosecution witnesses on 25.3.2026. The copies
rt
of the order sheets have not been filed to show that the
prosecution was responsible for the delay. Hence, the plea that
the petitioner is entitled to bail because of the delay cannot be
accepted. 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 the alleged 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
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2026:HHC:9405involvement, risks trenching upon the appreciation 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 twin requirements noticed above, inaddition to the ordinary tests under the Code of Criminal
Procedure.
of
19. In the present case, the High Court has not undertaken 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 of narcotic drugs
rt
and psychotropic substances only days prior to the seizure
forming the subject matter of the present complaint, nor dothey 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
factors bears directly upon the statutory satisfaction requiredby Section 37(1)(b).”
22. 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.
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.”
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23. 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.
24. No other point was urged.
25. In view of the above, the present petition fails, and it is
of
dismissed.
26. The observations made here-in-above are regarding
rt
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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