Himachal Pradesh High Court
Salima vs State Of Himachal Pradesh on 17 March, 2026
( 2026:HHC:7383 )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr.M.P(M) No.250 of 2026
Reserved on: 06.03.2026
Decided on: 17.03.2026
.
____________________________________________________
Salima ...Petitioner
Versus
State of Himachal Pradesh ...Respondents
Coram
Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge
of
Whether approved for reporting? 1 Yes
For the petitioner:rt Mr. Ankit Dhiman, Advocate.
For the respondent: Mr. Sumit Sharma, Deputy Advocate
General duly assisted by ASI Ravinder
Kumar, Police Station Sadar, Chamba,
Distt. Chamba, Himachal Pradesh.
Jiya Lal Bhardwaj, Judge
By way of present petition filed under Section 483
of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner
is seeking regular bail in case FIR No.302 of 2025 dated
26.12.2025 under Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “NDPS Act“).
2. As per the prosecution story, on 26.12.2025 at
around 12:00 noon, when the police team was checking the
1
Whether reporters of Local Papers may be allowed to see the judgment?
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vehicles at Rampur Mor near Bandla, District Chamba, H.P., the
petitioner who was coming from Tissa side was stopped for
checking while she was driving a Red Scooty without a number
.
plate. When the petitioner was asked why the number plate
had not been installed on the Scooty, she replied that she was
going to Chamba to get it installed. Thereafter, the petitioner
of
was asked to open the dicky of the Scooty for search. She
disclosed that the dicky is not in order for the last 10-12 days
rt
and that its lock is not in working condition. On suspicion and
due to the unsatisfactory response given by the petitioner, the
police party deputed C. Rakesh Kumar to call a mechanic, who
brought Ashik Ali from Kandla. The said mechanic was apprised
of the situation and the lock of the dicky was opened, from
which a black-coloured plastic bag tied with a knot was
recovered. Upon opening the knot of the said bag, a black,
green and white coloured substance was recovered, which, on
smell and experience, was found to be charas. The recovered
charas was weighed on an electronic weighing machine and
was found to be 1 kilogram and 402 grams. The recovered
charas was repacked in the same manner and sealed in a cloth
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parcel with six seals of seal ‘E’. NCB forms in triplicate were
filled up, and the impression of seal ‘E’ was taken on the NCB
forms as well as on a piece of cloth. The seal, after use, was
.
handed over to C. Rakesh Kumar. The proceedings at the spot
were photographed and video graphed. The parcel containing
the charas was taken into possession along with the Scooty.
of
Thereafter, a rukka was prepared and sent to Police Station
Sadar, Chamba, H.P. on the basis of which an FIR was
rt
registered against the petitioner.
3. The petitioner was arrested at around 10.15 p.m. in
the night and her arrest was informed to her father. The
medical of the petitioner was also got conducted at Chamba
Hospital. The petitioner had filed the application on 19.01.2026
for her release on bail before the learned Special Judge,
Chamba, Division Chamba, H.P. The said application came to
be rejected on 23.01.2026.
4. The petitioner has filed the present bail application
stating therein that she had already approached the learned
Court of Sessions for the grant of bail, however, the same was
rejected primarily on the ground of the alleged recovery of a
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commercial quantity and the applicability of Section 37 of the
Act, without appreciating the material contradictions and the
absence of conscious possession on the part of the petitioner.
.
Learned counsel for the petitioner has vehemently submitted
that the allegations against the petitioner are false and the
prosecution has not collected any evidence to connect her with
of
the commission of the alleged offence. It is also pleaded in the
petition that the petitioner has been made a scapegoat in a
rt
pre-planned conspiracy orchestrated by her husband and in-
laws, in connivance with certain interested persons, in order to
settle personal scores arising out of matrimonial disputes.
5. It has further been averred in the petition that the
petitioner was not conveyed the grounds of arrest and,
therefore, she is entitled to be enlarged on regular bail. It is
also pleaded in the petition that the investigation is complete
and the charge-sheet is likely to be filed soon, and no fruitful
purpose would be served by detaining the petitioner in custody.
It has also been pleaded that the petitioner is ready to abide
by all the conditions that may be imposed upon her by this
Court, while enlarging on bail. Hence, the petition be allowed
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and the petitioner be enlarged on regular bail.
6. The petition has been opposed by the respondent-
State by filing a status report, wherein it has been averred that
.
a commercial quantity of contraband was recovered from the
conscious possession of the petitioner. Further the police has
taken into possession two mobile phones of the petitioner from
of
her mother and one phone of her mother, and the same have
been sent for scientific investigation. As per the investigation, it
rt
has been found that the petitioner was involved in the
commission of the alleged offence. It has also been stated that
the challan has been prepared and is under scrutiny with the
District Attorney. The bail application earlier filed by the
petitioner before the learned Special Judge was dismissed on
23.01.2026. It has also been averred that in case the petitioner
is enlarged on bail, she may again involve in the commission of
similar offence.
7. I have heard Mr. Ankit Dhiman, learned counsel for
the petitioner and Mr. Sumit Sharma, learned Deputy Advocate
General, for the respondent-State.
8. The Hon’ble Supreme Court in Pinki v. State of
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U.P. and another, (2025) 7 SCC 314 has laid down the
parameters for grant of bail and relevant paras are reproduced
as under:
.
“(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 underof
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)
rt “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 — 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 is applying for bail
to find whether he has a bad record, particularly a
record which suggests that he is likely to commit
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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
of
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
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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
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)
of
“3. Grant of bail, though being a discretionary order,-
but, however, calls for exercise of such a discretion in
a judicious manner and not as a matter of course.
rt 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 may be considered
but that by itself, cannot be a guiding factor in the
matter of grant of bail, and the same should and
ought always to 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 case, yet the court
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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
of
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,
rt interfere with an order passed by the High Court
granting or rejecting bail to the accused. However, it
is equally incumbent upon the High Court to exercise
its discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is
well settled that, among other circumstances, the
factors to be borne in mind while considering an
application for bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the accused
had committed 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;
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(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being
thwarted by grant of bail.” (emphasis supplied)
.
Xxxxxxxx
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)
of
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
rt
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 ofan 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 accusationsagainst an accused and the facts that have a bearing
in the case, particularly, when the accusations maynot be false, frivolous or vexatious in nature but are
supported by adequate material brought on record soas 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::: Downloaded on – 17/03/2026 20:33:33 :::CIS
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punishment that would follow a conviction vis-Ã -vis
the offence(s) alleged against an accused.” (emphasis
supplied)”.
9. The present petition is to be decided as per the ibid
.
parameters laid down by the Hon’ble Supreme Court.
10. It is not in dispute that the petitioner was driving
the Scooty, on the relevant date, when the contraband was
of
recovered from it. The pleas taken by the petitioner that she
has been falsely implicated and further the contraband was not
rt
recovered from her conspicuous and exclusive possession,
cannot be believed for the reasons that on the relevant date,
when the vehicle was stopped for checking, the petitioner
herself had disclosed that dickey is not in order. Not only this,
she was driving the vehicle without number plate and on
asking, she had admitted that she is going for installing the
same.
11. Learned counsel for the petitioner has vehemently
submitted that the petitioner is not owner of the Scooty and
her husband had told her that lock of the dicky is not in
working condition, thus she did not know that the dickey was
containing contraband. This submission, at the first blush
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seems to be attractive, but the same is negated for the reason
that Hon’ble Supreme Court has held that in case the
contraband is recovered from any vehicle, all occupants of the
.
vehicle, would be in conscious possession of the contraband. At
this juncture, it would be profitable to refer to the judgment of
Hon’ble Supreme Court in Madan Lal and another versus
of
State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664,
wherein the conscious possession has been discussed. The
rt
relevant paragraphs of the said judgment read as under:-
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The facts
which can be culled out from the evidence on record are thatall the accused persons were travelling in a vehicle, 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 travelledtogether from the same destination in a vehicle which was
not a public vehicle.
20. Section 20(b) makes possession of contraband articles
an offence. Section 20 appears in Chapter IV of the Act,which relates to offences for possession of such articles. It is
submitted that in order 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.
22. The expression “possession” is a polymorphous term
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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 definition of
“possession” uniformly applicable to all situations in thecontext 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
194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in
rt
a given case need not be physical possession but can beconstructive, having power and control over the article in the
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, itwas observed that where a person keeps his firearm in his
mother’s flat, which is safer than his own home, he must beconsidered 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,
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possession of illicit articles.”
12. In the present case, the petitioner has admitted
.
that the contraband has been recovered from the Scooty, being
driven by her on the relevant date, but the plea taken is that
she was not in conscious possession of the charas is negated
as per the law of the Hon’ble Supreme Court. Once the
of
contraband is recovered from the petitioner, as per the
mandate of law, burden shifts upon her to show that her
rt
possession was not conscious as per Sections 35 and 54 of the
NDPS Act.
13. It is admitted fact that the contraband recovered
from the petitioner is weighing 1.402 Kilograms, which is a
commercial quantity. Since it is a commercial quantity, the
rigours of Section 37 of the NDPS Act applies to the present
case. 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.
The revenant provision reads as under:-
“37. Offences to be cognizable and non-bailable. –
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)–
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(a) every offence punishable under this Act shall be
cognizable.
(b) no person accused of an offence punishable for
[offences, under section 19, section 24, or section
.
27A and also for offences involving commercial
quantity], shall be released on bail or his own bond
unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
of
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
rt 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.
(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. The Hon’ble Supreme Court has interpreted the ibid
provisions of law in Union of India Versus Niyazuddin S.K.
and another, (2018) 13 SCC 738, and 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,
cannot be released on bail. The relevant paragraphs of the ibid
judgment read as under:-
“6. Section 37 of the NDPS Act contains special provisions
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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) Of offences involving a commercial quantity.
7. The accusation in the present case is with regard to the
fourth factor, namely, commercial quantity. Be that as it may,
of
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
rt
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
offence; (2) That person is not likely to commit any offence
while on bail.”
15. The above judgment has again been considered by
the Hon’ble Supreme Court in State of Kerala and others
Versus Rajesh and others, AIR 2020 SC 721 also reported in
(2020)12 SCC 122, wherein it was held as under:-
“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
of
hazard to the society; even if they are released
temporarily, in all probability, they would continue
their nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. The reason may be the
rt
large stake and illegal profit involved. This Court,
dealing with the contention with regard to
punishment under the NDPS Act, has succinctly
observed about the adverse effect of such activities in
Durand Didier vs Chief Secy. Union Territory of Goa,
(1990) 1 SCC 95) as under:
24. With deep concern, we may point out that the
organised activities of the underworld and the
clandestine smuggling of narcotic drugs andpsychotropic substances into this country and illegal
trafficking in such drugs and substances have led todrug addiction among a sizeable section of the public,
particularly the 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::: Downloaded on – 17/03/2026 20:33:33 :::CIS
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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 the mandatory
conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the
of
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
rt any justifiable reason for not abiding by the aforesaid
mandate while ordering the release of the respondent
accused on bail. Instead of attempting to take a
holistic view of the harmful socioeconomic
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
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grounds for believing that he is not guilty of such an offence.
If either of these two conditions is not satisfied, the ban on
granting bail operates.
21. The expression “reasonable grounds” means
.
something more than prima facie grounds. It contemplates
substantial probable causes for believing that the accused is
not guilty of the alleged offence. The reasonable belief
contemplated in the provision requires the existence of such
facts and circumstances as are sufficient in themselves to
of
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
rt
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, the relevant
paragraphs read as under:
“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
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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
of
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
rt 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.’
[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.
(1989) 1 SCC 532] ]
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***
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. (2003) 6 SCC 315]
11. The court, while considering the application for
bail with reference to Section 37 of the Act, is not
of
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
rt 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 State of Meghalaya v.
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– 22 –
Lalrintluanga Sailo, 2024 SCC OnLine SC 1751, that the grant
of bail without considering Section 37 of the NDPS Act is
impermissible. The relevant observations read as under:-
.
“5. There cannot be any doubt with respect to the
position that, in cases involving the commercial quantity ofnarcotic drugs or psychotropic substances, while
considering the application of bail, the Court is bound to
ensure the satisfaction of conditions under Section 37(1)of
(b)(ii) of the NDPS Act. The said provision reads thus:–
“37(1)(b)(ii)- where the Public Prosecutor
rt opposes the application, the court is satisfied
that there are reasonable grounds forbelieving 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::: Downloaded on – 17/03/2026 20:33:33 :::CIS
– 23 –
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
of
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
rt
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence.
As relates to the twin conditions under Section 37(1)(b)
(ii) of the NDPS Act, viz., that, firstly, there are reasonable
grounds for believing that the accused is not guilty of such
offence and, secondly, he is not likely to commit any
offence while on bail it was held therein that they are
cumulative and not alternative. Satisfaction of the
existence of those twin conditions had to be based on the
‘reasonable grounds’, as referred to above.
7. In the decision in State of Kerala v. Rajesh (2020) 12
SCC 122, after reiterating the broad parameters laid down
by this Court to be followed while considering an
application for bail moved by an accused involved in
offences under the NDPS Act, in paragraph 18 thereof this
Court held that the scheme of Section 37 of the NDPS Act
would reveal that the exercise of power to grant bail in
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– 24 –
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
of
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
rt
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.”
18. The plea taken by the counsel for the petitioner that
the petitioner was not supplied with the grounds of arrest
cannot be accepted, as in the present case, the contraband was
recovered from the Scooty being driven by the petitioner on the
said date, and, therefore, she was apprised of the fact that she
was being arrested for the commission of the alleged offence
under NDPS Act. Later on her father has been informed about
her arrest under the NDPS Act and thus, it cannot be said that
the mandate contained in Mihir Rajesh Shah v. State of
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– 25 –
Maharashtra, (2026) 1 SCC 500 has not been complied
with.
19. Learned counsel further vehemently argued that the
.
petitioner has two daughters aged 17 months and six years,
and keeping the same in view, the petitioner deserves to be
enlarged on bail. There cannot be any sympathy, where the
of
person is involved for commission of the heinous offence. This
Court could have ordered to release, the petitioner, if it was
rt
found that there is no recovery from the conscious possession
of the petitioner. At this juncture, keeping in view the material
come forth in the investigation, this Court is of the view
considered view that once the contraband has been recovered
from the conscious possession of the petitioner, from the vehicle
being driven by her, she is not entitled for bail. However, after
putting the challan and the material collected during
investigation, she can approach the Special Judge, Chamba,
H.P. seeking bail.
20. The plea that the petitioner was falsely been
implicated cannot be believed. Though, there may be some
dispute with the husband, but no family member can take such
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– 26 –
step to falsely implicate the family member. Hence, the
petitioner has failed to satisfy the conditions laid down under
Section 37 of the NDPS Act and is not entitled to bail.
.
21. The investigation is underway and challan in the
present case has not yet been presented before the competent
Court of law. No doubt, it is settled law that the bail is rule and
of
jail is an exception, but the said rule is not applicable while
deciding the bail applications under the NDPS Act as held in
rt
Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372:
2024 SCC OnLine SC 3848. The relevant paragraph of the
judgment reads as under:-
“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 theoffence is punishable with minimum sentence of
ten years, the accused shall generally not be
released on bail. Negation of bail is the rule, and itsgrant 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.”
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– 27 –
22. In view of the above, the present petition fails, and
same is dismissed.
23. The observation made hereinbefore shall remain
.
confined only to the disposal of the instant petition and will
have no bearing whatsoever on the merits of the case.
of
( Jiya Lal Bhardwaj )
Judge
17th March, 2026
rt
(Priti)
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