Himachal Pradesh High Court
Reserved On: 25.2.2026 vs Of on 3 March, 2026
2026:HHC:5309
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2606 of 2025
.
Reserved on: 25.2.2026
Date of Decision: 3.3.2026.
Jai Chand ...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 Prashant Sharma,
Advocate.
For the Respondent/State : Mr. Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in F.I.R. No. 47 of 2025, dated 6.4.2025,
registered at Police Station, Ghumarwin, District Bilaspur, H.P.,
for the commission of offences punishable under Sections 20
and 29 of the Narcotic Drugs and Psychotropic Substances Act
(NDPS Act), 1985.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that the police arrested the
petitioner on 6.4.2025 for the possession of 1.853 kilograms of
.
charas. The allegations against the petitioner are false. The
prosecution has not collected any evidence to connect him to the
commission of crime. The investigation is complete, and the
charge sheet has been filed before the Court on 19.8.2025. The
of
trial is likely to take some time to conclude, and no fruitful
purpose would be served by detaining the petitioner in custody.
rt
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 checking the vehicles at Parsola on
5.4.2025 at 8.20 PM. They signalled the driver of the vehicle
bearing registration No. HP-92A-0203 to stop. The driver
stopped the vehicle. The person sitting beside the driver tried to
conceal something after seeing the police. The police became
suspicious and associated Pankaj Kumar as an independent
witness. The driver identified himself as Dupal Singh, and the
person sitting beside the driver identified himself as Jai Chand
(the present petitioner). The police searched the vehicle and
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recovered four packets wrapped with khaki tape. The police
checked the packets and found 1.853 kilograms of charas. The
.
police seized the charas and arrested the occupants of the
vehicle. As per the report of analysis, the recovered substance
was confirmed to be an extract of cannabis and a sample of
charas. The charge sheet was filed before the Court on 4.6.2025,
of
and the case was listed for consideration on 25.11.2025. The
petitioner would indulge in the commission of a similar offence
rt
if released on bail and would intimidate the witnesses. Hence, it
was prayed that the present petition be dismissed.
4. I have heard Mr Prashant Sharma, learned counsel
for the petitioner and Mr Lokender Kutlehria, learned Additional
Advocate General, for the respondent-State.
5. Mr Prashant Sharma, learned counsel for the
petitioner, submitted that the petitioner is innocent and that he
was falsely implicated. The petitioner was not aware of the
contents of the packets. Therefore, he prayed that the present
petition be allowed and the petitioner be released on bail. He
relied upon the judgment of this Court in Amar Nath Vs. State of
H.P. 2025:HHC:22851 in support of his submission.
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6. Mr Lokender Kutlehria, learned Additional Advocate
General, for the respondent-State, submitted that the petitioner
.
was present in the vehicle from which the recovery of a
commercial quantity of charas was made. The rigours of Section
37 of the NDPS Act apply to the present case, and the petitioner
has not satisfied the twin conditions laid down in Section 37 of
of
the NDPS Act. Therefore, he prayed that the present petition be
dismissed. rt
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 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::: Downloaded on – 03/03/2026 20:40:32 :::CIS
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2026:HHC:5309liable, 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
of
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
rt
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
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
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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)
of
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
rt
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 placement of the accused in the
society, though it may be considered by itself, cannot be
a guiding factor in the matter of grant of bail, and 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)
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
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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
of
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
rt
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 accusedhad committed the offence;
(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
(viii) danger, of course, of justice being thwarted
by grant of bail.” (emphasis supplied)
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62. One of the judgments of this Court on the aspect of
application of mind and requirement of judicious exercise
of discretion in arriving at an order granting bail to the
accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC.
497 : (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench
of this Court, while setting aside an unreasoned and
casual order (Pappu Kumar v. State of Bihar, 2021 SCC
OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC
OnLine Pat 2857) of the High Court granting bail to the
accused, observed as follows: (Brijmani Devi v. Pappu
of
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
rt
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 so as 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-à-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.
10. The status report shows that the petitioner was
found sitting on the passenger seat. He tried to conceal
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something after seeing the police, which led to the search of the
vehicle and recovery of the charas. Prima facie, the conduct of
.
the petitioner in pushing the contraband after seeing the police
shows that he was aware of the contents of the packets, and that
is why he had tried to conceal them after seeing the police.
Further, he was travelling in the vehicle from which the recovery
of
was effected. In Madan Lal versus State of H.P. (2003) 7 SCC 465:
2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was
rt
recovered from a vehicle, and it was held that all the occupantsof 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 destinationin 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
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
of
particular 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
rt
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 inthe case in question, while the person to whom physical
possession 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.
27. In the factual scenario of the present case, not only
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2026:HHC:5309established. 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 his possession was not conscious as per Sections 35
and 54 of the NDPS Act.
of
12. In Amar Nath (supra), the petitioner was driving the
taxi and the recovery was effected from the luggage of the
rt
passenger. This Court held that a taxi driver cannot be held liable
for the possession of the contraband by the passenger. In the
present case, the vehicle was not a taxi, and the conduct of the
petitioner, prima facie, shows his involvement. Therefore, the
cited judgment does not apply to the present case.
13. The police had recovered 1.853 kilograms of charas,
which is a commercial quantity. Hence, the rigours of Section 37
of the NDPS Act apply to the present case.
14. 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:
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“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 commercial
quantity, shall be released on bail or his own bondof
unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
rt (ii) where the Public Prosecutor opposes the
application, the court is satisfied that thereare reasonable grounds for believing that he
is not guilty of such an offence and that he is
not likely to commit any offence while onbail.
(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 grantingof bail.”
15. This Section was interpreted by the Hon’ble Supreme
Court in Union of India Versus Niyazuddin& Another (2018) 13 SCC
738, and it was held that in the absence of the satisfaction that
the accused is not guilty of an offence and he is not likely to
commit an offence while on bail, he cannot be released on bail.
It was observed:
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“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.
of
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
rt
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;
(2) that person is not likely to commit any
offence while on bail.”
16. This position was reiterated in State of Kerala Versus
Rajesh, AIR 2020 SC 721, wherein it was held:
“19. This Court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act.
In Union of India vs Ram Samujh and Ors., (1999) 9 SCC
429, it has been elaborated as under: –
“7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a
murder case, the accused commits the murder of::: Downloaded on – 03/03/2026 20:40:32 :::CIS
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2026:HHC:5309one or two persons, while those persons who are
dealing in narcotic drugs are instrumental in
causing death or in inflicting death-blow to a
number of innocent young victims, who are.
vulnerable; it causes deleterious effects and a
deadly impact on the society; they are a hazard to
the society; even if they are released temporarily, inall probability, they would continue their nefarious
activities of trafficking and/or dealing in
intoxicants clandestinely. The reason may be theof
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
rt
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 thiscountry and illegal trafficking in such drugs
and substances have led to drug addiction
among a sizeable section of the public,particularly the adolescents and students of
both sexes and the menace has assumedserious and alarming proportions in the
recent years. Therefore, in order to effectivelycontrol and eradicate this proliferating and
booming devastating menace, causing
deleterious effects and a deadly impact on
society as a whole, Parliament, in its wisdom,
has made effective provisions by introducing
Act 81 of 1985 specifying mandatory
minimum 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::: Downloaded on – 03/03/2026 20:40:32 :::CIS
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2026:HHC:5309the 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
of
accused on bail. Instead of attempting to take
a holistic view of the harmful socio-
rt economic consequences and health hazards
which would accompany trafficking illegally
in dangerous drugs, the court should
implement the law in the spirit with which
Parliament, after due deliberation, has
amended.”
20. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also
subject 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
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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.”
of
17. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
rt
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
(ii) There must exist “reasonable grounds to
believe” that (a) the person is not guilty of such anoffence, 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],
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
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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
of
to give an exact definition of the word
“reasonable”.
‘7. … Stroud’s Judicial Dictionary, 4th Edn., p. 2258
rt
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.
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
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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)
of
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
rt
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.”
18. 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 person
accused 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 has
been given an opportunity to oppose the bail application;
and (ii) the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
offence and that he is not likely to commit any such
offence while on bail.
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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 orof
section 27A, and also for offences involving
commercial quantity, shall be released on bail or
on his own bond unless-
rt (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.”
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.
19. 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:
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“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 reasonable
grounds for believing that he is not guilty of such offence
and that he is not likely to commit any offence while onof
bail.”
6. While considering the cases under the NDPS Act, one
cannot be oblivious of the objects and reasons for
rt
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 narcoticdrugs 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 formatters connected therewith.”
In the decision in Collector of Customs, New Delhi v.
Ahmadalieva Nodira (2004) 3 SCC 549, the three-judge
bench of this Court considered the provisions under
Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with
regard to the expression “reasonable grounds” used
therein. This Court held that it means something more
than the prima facie grounds and that it contemplates
substantial and probable causes for believing that the
accused is not guilty of the alleged offence. Furthermore,
it was held that the reasonable belief contemplated in the
provision would require the existence of such facts and
circumstances as are sufficient in themselves to justify
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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.
of
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
rt
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.”
20. In the present case, the petitioner was prima facie
found in possession of a commercial quantity of charas. There is
nothing on record to show that he would not indulge in the
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commission of an offence if released on bail. Hence, he has
failed to satisfy the twin conditions laid down under Section 37
.
of the NDPS Act and is not entitled to bail.
21. 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
of
he is prima facie involved in the commission of an offence
punishable under Section 20 of the NDPS Act involving the
rt
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 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.”
22. No other point was urged.
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23. In view of the above, the present petition fails, and it
is dismissed.
.
24. 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.
of
(Rakesh Kainthla)
Judge
3rd March, 2026 rt
(Chander)
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