Rajasthan High Court – Jodhpur
Ashok Kumar vs State Of Rajasthan (2026:Rj-Jd:13931) on 17 March, 2026
[2026:RJ-JD:13931]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 1027/2026
Ashok Kumar S/o Magaram, Aged About 22 Years, R/o Ratasar,
Police Statiom Binjrad, District Barmer, Rajasthan (Lodged In
District Jail, Pali)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Bhagirath Bishnoi
For Respondent(s) : Mr. Pawan Bhati, PP
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
17/03/2026
1. The instant second application for bail under Section 483 of
BNSS (439 of Cr.P.C.) has been filed by the petitioner who has
been arrested in the present matter. The requisite details of the
matter are tabulated herein below:
S. No. Particulars of the case
1. FIR Number 204/2023
2. Police Station Transport Nagar, Pali
3. District Pali
4. Offences alleged in the FIR Sec.8/15 of the NDPS Act
5. Offences added, if any Sec. 472 and 201 of IPC.
The 1st application filed on behalf of petitioner i.e S.B
Criminal Misc. Bail Application No. 11949/2025 was dismissed as
not pressed vide order dated 01.12.2025 passed by this court,
however, with the liberty to the petitioner to file fresh bail
application after recording the statement of Seizure Officer. After
rejection of first bail application, the statement of Seizure Officer-
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PW4 Udai Singh has been recorded. Hence, this second application
for bail has been filed.
2. Heard learned Counsel for the petitioner and learned Public
Prosecutor
3. Learned counsel for the petitioner submitted that the
petitioner is falsely implicated in the present case. It is also
submitted that the case is afflicted with serious procedural
infirmities that give rise to reasonable grounds to believe the
accused is not guilty. Learned counsel for the petitioner submits
that the Seizure Officer, Udaisingh, was not exclusively posted as
the SHO of the concerned police station at the time of the alleged
search and seizure, but was simultaneously holding charge of two
police stations, namely Transport Nagar Pali and Industrial Area
Pali, and therefore lacked lawful authority to conduct the search
and seizure under the NDPS Act (hereinafter referred as ‘The
Act‘). Reliance is placed on Ashok @ Mulla Ram v. State of
Rajasthan [CRLMB No. 7942/2023].
4. Learned counsel further submits that although the alleged
recovery was effected on 08.12.2023, the samples were forwarded
to the FSL only on 26.12.2023, i.e., after an inordinate delay of 18
days from the date of seizure, without any explanation, which is in
contravention of Clause 1.13 of Standing Order No. 1 of 1989
dated 15.03.1988, wherein it is mandated that samples drawn
ought to have been sent for FSL examination within 72 hours from
recovery. Reliance is placed on Wajid Ali @ Tinku v. State of
Rajasthan (SLP CRL 7049/2025).
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Learned counsel also submits that the chargesheet has been
filed; petitioner has no previous criminal antecedents; he has been
in custody since 09.12.2023, and the trial of the case may take
sufficient time to conclude, therefore, the petitioner may be
enlarged on bail.
5. Per contra, learned Public Prosecutor vehemently opposes
the bail application and submits that a commercial quantity of
14.75 quintals of poppy straw has been recovered from the
conscious possession of the petitioner, and the said recovery
stands duly corroborated by a positive FSL report confirming the
nature of the contraband. It is further submitted that the
objections raised with regard to alleged procedural lapses are
matters of trial and cannot be adjudicated at this stage. It is
contended that the petitioner has failed to satisfy the stringent
twin conditions envisaged under Section 37 of the Act, and
therefore, no case for grant of bail is made out. Accordingly, it is
prayed that the bail application be rejected.
6. I have considered the rival submissions made by learned
counsels for the parties and perused the record.
7. Before anything else, at the outset, this Court finds it
appropriate to examine the true nature and scope of Section 37 of
the Act, since this provision governs and limits the Court’s
discretion in deciding the present application.
7.1 Section 37 of the Act is not an ordinary bail provision. It
creates a specific statutory embargo on the grant of bail in cases
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involving a commercial quantity of contraband, and operates in
addition to, not in substitution of, the general principles governing
bail. The provision mandates that prior to the granting of bail , the
Court must record its satisfaction on two cumulative conditions:
first, that there exist reasonable grounds for believing the accused
is not guilty; and second, that the accused is not likely to commit
any offence while on bail. If either condition is not satisfied, bail
cannot be granted; there is no discretion. The Hon’ble Supreme
Court in the State of Meghalaya v. Lalrintluanga Sailo & Anr .
[Special Leave to Appeal (Crl.) No(s). 16021/2023] has
made it clear that the grant of bail without recording satisfaction
on the twin conditions under Section 37 of the Act is simply
impermissible in law. The relevant portion of the judgment is
reproduced hereunder:
4….
5. There cannot be any doubt with respect to the position that
in cases involving 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 on bail.”
6. While considering the cases under NDPS Act, one cannot
be oblivious of the objects and reasons for bringing the said
enactment after repealing the then existing laws relating to
the Narcotic drugs. The object and reasons given in the acts
itself reads thus: – “An act to consolidate and amend the law
relating to narcotic drugs, to make stringent provisions for the
control and regulation of operations relating to narcotic drugs
and psychotropic substances, to provide for the forfeiture of
property derived from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to implement the
provisions of the International Convention on Narcotic Drugs
and Psychotropic Substances and for matters connected
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therewith.” In the decision in Collector of Customs, New
Delhi v. Ahmadalieva Nodira1, 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 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 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 existence of
those twin conditions had to be based on the ‘reasonable
grounds’, as referred above.
7. In the decision in State of Kerala and Ors. v. Rajesh and
Ors.2, 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 for granting bail would operate.
8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS
Act and the decisions referred supra revealing the consistent
view of this Court that while considering the application for
bail made by an accused involved in an offence under 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 sine
qua non for granting bail to an accused under the NDPS Act
cannot be avoided while passing orders on such applications.
9……
10. The subject FIR viz., FIR No. 06(02)23 under Section(s)
21(c)/29 of the NDPS Act, would reveal that the quantity of
the contraband involved is 1.040 kgs of heroin. The impugned
order granting bail to accused-Smt. X, dated 29.09.2023
would reveal, this time also, the bail was granted on the
ground that she is suffering from HIV and conspicuously,
without adverting to the mandate under Section 37(1)(b)(ii),
NDPS Act, even after taking note of the fact that the rigour of
Section 37, NDPS Act, calls for consideration in view of the
involvement of commercial quantity of the contraband
substance. When the accused is involved in offences under
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Section 21(c)/29 of NDPS Act, more than one occasion and
when the quantity of the contraband substance viz., heroin is
1.040 Kgs, much above the commercial quantity, then the non-
consideration of the provisions under Section 37, NDPS Act,
has to be taken as a very serious lapse. In cases of like
nature, granting bail solely on the ground mentioned, relying
on the decision in Bhawani Singh v. State of Rajasthan
would not only go against the spirit of the said decision but
also would give a wrong message to the society that being a
patient of such a disease is a license to indulge in such
serious offences with impunity. In the contextual situation it is
to be noted that in Bhawani Singh‘s case the offence(s)
involved was not one under the NDPS Act. We have no
hesitation to say that in the above circumstances it can only
be held that the twin conditions under Section 37 of the NDPS
Act, are not satisfied and on the sole reason that the accused
is a HIV patient, cannot be a reason to enlarge her on bail.
Since the impugned order was passed without adhering to the
said provision and in view of the rigour thereunder the
accused-Smt.X is not entitled to be released on bail, the
impugned order invites interference. 11. Consequently, the
impugned order is set aside. The accused-Smt.X shall
surrender before the trial Court within a week from today and
in case of her failure to do so, she shall be taken into custody
in accordance with law. Upon such surrender/production of
the accused before the trial Court, it shall cancel the bail
bond of the accused and discharge the sureties.
7.2 The procedural objections raised by learned counsel for
the petitioner touching whether the officer had lawful authority,
and what caused the FSL delay, are all matters that require
detailed inquiry and cannot be conclusively determined at the bail
stage on the basis of limited material. The Hon’ble Supreme Court
in Narcotics Control Bureau v. Mohit Agarwal, (2022) 18
SCC 374, has held that under Section 37 of the Act, a weak
prosecution case does not suffice for bail to be granted; the
accused must establish, prima facie, that he is not guilty. It is not
enough to poke holes in the prosecution’s procedure; the accused
must satisfy the Court affirmatively on the twin conditions. The
procedural objections raised, even if taken at face value, fall short
of that standard. The relevant portion is reproduced below:
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[2026:RJ-JD:13931] (7 of 12) [CRLMB-1027/2026]“It is evident from a plain reading of the non-obstante clause
inserted in sub-section (1) and the conditions imposed in sub-
section (2) of Section 37 that there are certain restrictions placed
on the power of the Court when granting bail to a person accused
of having committed an offence under the NDPS Act. Not only are
the limitations imposed under Section 439 of the Code of Criminal
Procedure, 1973 to be kept in mind, the restrictions placed under
clause (b) of sub-section (1) of Section 37 are also to be factored
in. The conditions imposed in sub section given an opportunity to
oppose the application moved by an accused person for release and
(ii) if such an application is opposed, then the Court must be
satisfied that there are reasonable grounds for believing that the
person accused is not guilty of such an offence. Additionally, the
Court must be satisfied that the accused person is unlikely to
commit any offence while on bail.
12. The expression “reasonable grounds” has come up for
discussion in several rulings of this Court. In “Collector of
Customs, New Delhi v. Ahmadalieva Nodira“5, a decision
rendered by a Three Judges Bench of this Court, it has been
held thus :-
“7. The limitations on granting of bail come in only
when the question of granting bail arises on merits.
Apart from the grant of opportunity to the Public
Prosecutor, the other twin conditions which really have
relevance so far as the present accused-respondent is
concerned, are: the satisfaction of the court that there
are reasonable grounds for believing that the accused
is not guilty of the alleged offence and that he is not
likely to commit any offence while on bail. The
conditions are cumulative and not alternative. The
satisfaction contemplated regarding the accused being
not guilty has to be based on reasonable grounds. 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 existence of such facts and circumstances as
are sufficient in themselves to justify satisfaction that
the accused is not guilty of the alleged offence.”
[emphasis added]
13. The expression “reasonable ground” came up for
discussion in “State of Kerala and others Vs. Rajesh and
others” 6 and this Court has observed as below:
“20. 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 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 on 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
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[2026:RJ-JD:13931] (8 of 12) [CRLMB-1027/2026]under the NDPS Act is indeed uncalled for.” [emphasis
added]
14. To sum up, the expression “reasonable grounds” used in clause
(b) of Sub-Section (1) of Section 37 would mean credible, plausible
and grounds for the Court to believe that the accused person is not
guilty of the alleged offence. For arriving at any such conclusion,
such facts and circumstances must exist in a case that can persuade
the Court to believe that the accused person would not have
committed such an offence. Dove-tailed with the aforesaid
satisfaction is an additional consideration that the accused person
is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for
bail in the context of the Section 37 of the Act, the Court is not
required to record a finding that the accused person is not guilty.
The Court is also not expected to weigh the evidence for arriving at
a finding as to whether the accused has committed an offence
under the NDPS Act or not. The entire exercise that the Court is
expected to undertake at this stage is for the limited purpose of
releasing him on bail. Thus, the focus is on the availability of
reasonable grounds for believing that the accused is not guilty of
the offences that he has been charged with and he is unlikely to
commit an offence under the Act while on bail.
16….
17….
18. In our opinion the narrow parameters of bail available under
Section 37 of the Act, have not been satisfied in the facts of the
instant case. At this stage, it is not safe to conclude that the
respondent has successfully demonstrated that there are reasonable
grounds to believe that he is not guilty of the offence alleged
against him, for him to have been admitted to bail. The length of
the period of his custody or the fact that the charge-sheet has been
filed and the trial has commenced are by themselves not
considerations that can be treated as persuasive grounds for
granting relief to the respondent under Section 37 of the NDPS Act.
19. As a result of the aforesaid discussion, the present appeals are
allowed and the impugned order releasing the respondent on post-
arrest bail, is quashed and set aside. The bail bonds of the
respondent are cancelled and he is directed to be taken into custody
forthwith.”
7.3 In the case of Union of India v. Ajay Kumar Singh,
2023 SCC OnLine SC 346, the Hon’ble Apex Court, while setting
aside a bail order in a case involving commercial quantity, has
clarified the legal position with respect to Section 37 of the Act. It
has been held that a person accused of an offence involving
commercial quantity cannot be released on bail unless the twin
conditions stipulated therein are duly satisfied. The Court has
further emphasized that the prima facie involvement of the
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accused must be specifically considered and ruled out before the
grant of bail. The Hon’ble Apex Court observed as under:
“14. 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.
15. For the sake of convenience Section 37(1) is reproduced herein
below:-
“37. Offences to be cognizable 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
cognizable;
(b) no person accused of an offence punishable for 2[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 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.
17. The quantity of “ganja” recovered is admittedly of commercial
quantity. The High Court has not recorded any finding that the
respondent-accused is not prima facie guilty of the offence alleged and
that he is not likely to commit the same offence when enlarged on bail
rather his antecedents are indicative that he is a regular offender. In
the absence of recording of such satisfaction by the court, we are of the
opinion that the High Court manifestly erred in enlarging the
respondent-accused on bail.
18. In view of the aforesaid facts and circumstances and considering
the role assigned to the respondent accused and the illegality
committed in releasing him on bail, we set aside the impugned final
order dated 17.10.2022 passed by the High Court of judicature at
Allahabad and allow the appeal.
19. The appeal is allowed.”
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7.4 The most recent pronouncement of the Hon’ble
Supreme Court on Section 37 of the Act makes the legal position
abundantly clear. In Union of India v. Vigin K. Varghese 2025
Supreme(SC) 1930 decided on November 13, 2025, the Hon’ble
Court set aside bail granted by the High Court involving
commercial quantity, holding that Section 37 of the Act creates a
specific embargo on bail and that prolonged custody and
anticipated delay in trial cannot, by themselves, be used to bypass
the twin conditions. The Court found that the High Court had failed
to properly engage with the prosecution’s material and had
reached a finding of ‘no knowledge’ without any discussion, calling
such an approach legally unsustainable. The apex court observed
as under:
“17…….It is the statutory threshold under Section 37(1)(b)(ii) which
would disentitle the discretionary relief and grant of bail must
necessarily rest on careful appraisal of the material available. A
conclusion of this nature, if returned without addressing the
prosecution’s assertions of operative control and antecedent
involvement, risks trenching upon appreciation of evidence which would
be in the domain of trial court at first instance.
18. This Court ordinarily shows deference to the discretion exercised by
the High Court while considering the grant of bail. However, offences
involving commercial quantity of narcotic drugs stand on a distinct
statutory footing. Section 37 enacts a specific embargo on the grant of
bail and obligates the Court to record satisfaction on the twin
requirements noticed above, in addition to the ordinary tests under the
Code of Criminal Procedure.
19. In the present case, the High Court has not undertaken the analysis
of those twin requirements with reference to the material placed by the
prosecution. The orders dated 22.01.2025 and 12.03.2025 do not advert
to the allegation regarding the respondent’s prior involvement in a
seizure of narcotic drugs and psychotropic substances only days prior to
the seizure forming the subject matter of the present complaint, nor do
they engage with the prosecution’s assertion as to the respondent’s role
in arranging, importing, clearing and supervising the consignments.
The omission to consider these factors bears directly upon the statutory
satisfaction required by Section 37(1)(b).
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[2026:RJ-JD:13931] (11 of 12) [CRLMB-1027/2026]on whether there are or not reasonable grounds, for believing that the
respondent is not guilty, or on whether he is likely to commit any offence
while on bail. That factual assessment, which the statute requires to be
made and recorded with reasons, is one that the High Court must
undertake upon a complete and fair appraisal of the rival contentions
based on materials placed before it.
21. In our considered view, the interests of justice would be met if the
impugned orders are set aside and the matter is remitted to the High
Court for fresh consideration of the respondent’s prayer for bail,
keeping in view the parameters of Section 37 of the NDPS Act, the
nature and quantity of contraband alleged to have been seized including
50.232 kilograms of Cocaine on 06.10.2022 and 07.10.2022, the role
attributed to the respondent in the said import, the allegation of his
involvement in an earlier seizure of 198.1 kilograms of
methamphetamine and 9.035 kilograms of cocaine in early October
2022, the period of custody undergone since October 2022, and the
stage of trial before the Special Court.”
7.5 This Court refrains from entering into the merits of the
case and limits its consideration to the material placed on record
at this stage. The prosecution has attributed a recovery of 14.75
quintal of poppy straw, alleged to be above commercial quantity,
from the vehicle driven by petitioner, and the FSL report is stated
to confirm the nature of the seized substance. On a prima facie
consideration of the material so placed, this Court is not in a
position to be satisfied that there are reasonable grounds to
believe that the accused is not guilty of the alleged offences nor
can it be said that, if released on bail, he is not likely to commit
any offence while on bail, as required under Section 37 of the Act.
Consequently, none of the twin conditions thereunder stands
fulfilled in the present case.
It may also be noted that the NDPS Act was enacted with the
specific object of curbing drug trafficking, and this Court cannot
lose sight of that purpose while deciding the present bail
application.
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7.6. Having considered the submissions advanced by the learned
counsel for the parties and upon perusal of the material placed on
record, this Court is of the considered view that the present case
does not satisfy the stringent conditions prescribed under Section
37 of the Act. This Court is therefore not inclined to grant bail to
the applicant at this stage.
8. Accordingly, this second bail application is dismissed as
rejected.
9. The procedural objection raised shall be open to the
petitioner to urge before the trial court at the appropriate stage,
where they can be examined based on evidence.
10. It is clarified that nothing stated in this order shall be read as
an expression of opinion on the merits of the case, and the trial
court shall proceed without being prejudiced by observation made
herein.
(MUKESH RAJPUROHIT),J
80-AbhishekS/-
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