Himachal Pradesh High Court
Reserved On: 5.3.2026 vs State Of Hp on 12 March, 2026
2026:HHC:6935
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 143 of 2026
.
Reserved on: 5.3.2026
Date of Decision: 12.3.2026.
Nisha Devi ....Petitioner
of
Versus
State of HP .... Respondent
rt
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr Rajiv Rai, 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 FIR No. 111 of 2025, dated 15.6.2025,
registered at Police Station Barmana, District Bilaspur, H.P., for
the commission of offences punishable under Sections 20 and 29
of the Narcotic Drugs and Psychotropic Substances Act (NDPS).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that, as per the prosecution, the
petitioner was accompanying her father in a bus. The police
.
recovered 2.42 kilograms of charas from the bag lying on the
petitioner’s lap. The police have completed the investigation and
filed the charge sheet before the Court. The presence of a lady
constable on the spot is highly doubtful. The petitioner’s father
of
revealed during the interrogation that he had prepared the
charas from naturally grown cannabis plants, and he was taking
rt
them to Nepal for sale. The petitioner was not in possession, as
per the statement. The petitioner was residing at Kullu with her
seven-year-old son. There is no one to look after him. The
petitioner is presumed to be innocent until proved guilty. No
fruitful purpose would be served by detaining the petitioner in
custody. 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 had set up a naka on 15.6.2025 at the
rain shelter near ACC Check Post Barmana. The police stopped
and boarded the bus bearing registration No. HP-18C-4796 at
1:20 AM. The occupant of Seat No.26 acted suspiciously and
revealed during the inquiry that he was travelling with his
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daughter to Chandigarh. The police searched him and the
petitioner, who was occupying Seat No.21. The petitioner was
.
found in possession of a bag that contained 2 packets. The police
checked the packets and recovered 2 kilograms 42 grams of
charas. The police arrested the petitioner and her father. The
total weight of charas was found to be 1968 grams during the
of
inventory proceedings. The charas was sent to SFSL, and as per
the report, it was confirmed to be an extract of cannabis and a
rt
sample of charas. The police filed a charge sheet before the Court
on 30.7.2025. Hence, the status report.
4. I have heard Mr Rajiv Rai, learned counsel for the
petitioner and Mr Lokender Kutlehria, learned Additional
Advocate General for the respondent/State.
5. Mr Rajiv Rai, learned counsel for the petitioner,
submitted that the petitioner is innocent and that she was falsely
implicated. The status report specifically mentions that the
petitioner’s father had admitted to the preparation of charas.
The police implicated the petitioner falsely without any material.
The petitioner has a minor kid dependent upon her. The
petitioner would abide by the terms and conditions that the
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Court may impose. Hence, he prayed that the present petition be
allowed and the petitioner be released on bail.
.
6. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that charas was
recovered from a bag being carried by the petitioner. The
statement made by the co-accused to the police is for
of
investigative purposes and is inadmissible in evidence. The
quantity of charas recovered by the police was commercial, and
rt
the rigours of Section 37 of the NDPS Act apply to the present
case. Hence, he prayed that the present petition be dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the record carefully.
8. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC
314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:
(i) Broad principles for the grant of bail
56. InGudikantiNarasimhulu v. High Court of A.P., (1978) 1
SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while
elaborating on the content of Article 21 of the Constitution
of India in the context of personal liberty of a person
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)::: Downloaded on – 12/03/2026 20:33:44 :::CIS
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2026:HHC:6935“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.
[Patrick Devlin, “The Criminal Prosecution in England”
(Oxford University Press, London 1960) p. 75 —
of
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
rt
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 conviction
will entail, the character, behaviour, means and standing
of the accused, circumstances which are peculiar to the
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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
of
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
rt
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)
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
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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
of
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
rt
with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed 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 2856and 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)of
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
rt
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 thegrant 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. Dueconsideration must be given to facts suggestive of the
nature of crime, the criminal antecedents of the accused, ifany, and the nature of punishment that would follow a
conviction vis-Ã -vis the offence(s) alleged against an
accused.” (emphasis supplied)
9. Hon’ble Supreme Court held in State of Rajasthan v.
Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC
261 that the normal rule is bail and not jail, except where the
gravity of the crime or the heinousness of the offence suggests
otherwise. It was observed at page 308:
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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 or
creating 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 not
intend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved is likely
to induce the petitioner to avoid the course of justice and
must weigh with us when considering the question of jail.
of
So also, the heinousness of the crime….”
10. The present petition has to be decided as per the
rt
parameters laid down by the Hon’ble Supreme Court.
11. The status report specifically mentions that the
petitioner had a purse from which 2 kilograms 42 grams of
charas was recovered. Therefore, the report prima facie shows
that the petitioner’s possession and the burden would be upon
her to show that it was not conscious as per Sections 35 and 54 of
the NDPS Act.
12. A heavy reliance was placed upon the statement made
by the co-accused admitting that he had prepared the charas. It
was rightly submitted on behalf of the State that the statement
made by the co-accused is inadmissible in evidence and neither
prosecution nor defence can take advantage from it. It was laid
down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra
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Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361:
2019 SCC OnLine SC 588 that a statement made by a co-accused
.
during the investigation is hit by Section 162 of Cr.P.C. and
cannot be used as a piece of evidence. It was also held that the
confession made by the co-accused is inadmissible under Section
25 of the Indian Evidence Act. It was observed at page 568: –
of
44. Such a person, viz., the person who is named in the
FIR, and therefore, the accused in the eye of the law, can
rt
indeed be questioned, and the statement is taken by the
police officer. A confession that is made to a police officer
would be inadmissible, having regard to Section 25 of theEvidence Act. A confession, which is vitiated under Section
24 of the Evidence Act, would also be inadmissible. A
confession, unless it fulfils the test laid down in PakalaNarayana Swami [Pakala Narayana Swami v. King Emperor,
1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47]
and as accepted by this Court, may still be used as anadmission under Section 21 of the Evidence Act. This,
however, is subject to the bar of admissibility of astatement under Section 161 CrPC. Therefore, even if a
statement contains an admission, the statement being one
under Section 161, it would immediately attract the barunder Section 162 CrPC.”
13. Similarly, it was held in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC
271 that a confession made by a co-accused cannot be taken as a
substantive piece of evidence against another co-accused and
can only be utilised to lend assurance to the other evidence. The
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Hon’ble Supreme Court subsequently held in Tofan Singh Versus
State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a
.
police officer during the investigation is hit by Section 25 of the
Indian Evidence Act and is not saved by the provisions of Section
67 of the NDPS Act. Therefore, no advantage can be derived by
the prosecution from the confessional statement made by the
of
co-accused implicating the petitioner, and it is impermissible to
detain the petitioner in custody based on the statement made by
rt
the co-accused.
14. Therefore, the petitioner cannot derive any advantage
from the confession made by the co-accused.
15. The net quantity of the charas was found to be 1968
grams during the proceedings under Section 52(a) of the NDPS
Act.
16. The Central Government has notified 1 kilogram of
charas as a commercial quantity. Thus, the petitioner was found
in possession of a commercial quantity of charas, and the rigours
of Section 37 of the NDPS apply to the present case.
17. Section 37 of the NDPS Act provides that in an offence
involving a commercial quantity, the Court should be satisfied
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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
of
cognisable.
(b) no person accused of an offence punishable for
rtoffences under section 19, section 24, or section
27A and also for offences involving commercial
quantity, shall be released on bail or his own bondunless-
(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 thereare reasonable grounds for believing that he
is not guilty of such an offence and that he isnot 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.”
18. 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
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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,
(2) Under Section 24,of
(3) Under Section 27A and
(4) offences involving a commercial quantity.
rt
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;
(2) that person is not likely to commit any offence
while on bail.”
19. 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: –
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“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 the
of
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
rt
illegal profit involved. This Court, dealing with the
contention with regard to punishment under the
NDPS Act, has succinctly observed about the adverse
effect of such activities in Durand Didier vs Chief
Secy. Union Territory of Goa, (1990) 1 SCC 95) as
under:
24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugsand psychotropic substances into this country
and illegal trafficking in such drugs andsubstances have led to drug addiction among
a sizeable section of the public, particularlythe adolescents and students of both sexes
and the menace has assumed serious and
alarming proportions in the recent years.
Therefore, in order to effectively control and
eradicate this proliferating and booming
devastating menace, causing deleterious
effects and a deadly impact on society as a
whole, Parliament, in its wisdom, has made
effective provisions by introducing Act 81 of
1985 specifying mandatory minimum
imprisonment and fine.
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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
(ii) that he is not likely to commit any offence
of
while on bail are satisfied. The High Court has
not given any justifiable reason for not
rt abiding by the aforesaid mandate while
ordering the release of the respondent
accused on bail. Instead of attempting to take
a holistic view of the harmful socio-economic
consequences and health hazards which
would accompany trafficking illegally in
dangerous drugs, the court should implement
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.
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21. The expression “reasonable grounds” means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence. The
.
reasonable belief contemplated in the provision requires
the existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case at
hand, the High Court seems to have completely overlooked
the underlying object of Section 37 that, in addition to the
of
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.”
rt
20. 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
(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],
held that: (SCC pp. 801-02, paras 7-8 & 10-11)
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“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.
of
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
rt
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.
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.
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[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
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)
rt
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.”
21. 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;
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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)-
of
(a) every offence punishable under this Act shall
be cognisable.
rt (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
(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.
22. It was held in State of Meghalaya v. Lalrintluanga Sailo,
2024 SCC OnLine SC 1751, that the grant of bail without
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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, whileconsidering 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:–
of
“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
rt
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 inthe acts themselves read thus:–
“An act to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the controland regulation of operations relating to narcotic drugs and
psychotropic substances, to provide for the forfeiture ofproperty derived from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to implement theprovisions 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 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
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accused is not guilty of the alleged offence. Furthermore,
it was held that the reasonable belief contemplated in the
provision would require the existence of such facts and
circumstances as are sufficient in themselves to justify
.
satisfaction that the accused is not guilty of the alleged
offence.
As relates to the twin conditions under Section 37(1)(b)(ii)
of the NDPS Act, viz., that, firstly, there are reasonable
grounds for believing that the accused is not guilty of such
offence and, secondly, he is not likely to commit any
of
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.
rt
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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23. 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, She has not satisfied the twin
conditions laid down in Section 37 of the ND&PS Act.
of
24. 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
She 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 ac-
cused 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 are::: Downloaded on – 12/03/2026 20:33:44 :::CIS
23
2026:HHC:6935mandatory 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.”
.
25. No other point was urged.
26. In view of the above, the present petition fails, and it
is dismissed.
27. The observation made herein before shall remain
of
confined to the disposal of the instant petition and will have no
bearing, whatsoever, on the merits of the case.
rt
(Rakesh Kainthla)
Judge
12th March, 2026
(Chander)
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