Himachal Pradesh High Court
Abhay vs State Of Hp on 6 April, 2026
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 413 of 2026
Reserved on: 31.3.2026
Date of Decision: 06.04.2026.
.
Abhay .... Petitioner
Versus
State of HP .... Respondent
of
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner
For the Respondents
rt :
:
Mr Vivek Kathuria, Advocate.
Mr. Lokender Kutlehria, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition seeking
for regular bail in FIR No. 87 of 2025, dated 01.06.2025,
registered for the commission of offences punishable under
Sections 20 and 29 of the Narcotic Drugs and Psychotropic
Substances (NDPS) Act and Section 25 of the Arms Act at Police
Station Ghumarwin, District Bilaspur, H.P.
2. It has been asserted that, as per the prosecution, the
petitioner and co-accused Vishal, Aman and Abhishek were
found occupying the vehicle bearing registration No. HR-68C-
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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3033 on 30.05.2025 at 7:00 p.m. near Toll Plaza towards Bhaged.
The police recovered one country made pistol and charas
.
weighing 1 Kilogram and 63.7 grams. The petitioner is innocent,
and he was falsely implicated. The petitioner is a young boy aged
18 years. As per the F.I.R., 1 Kilogram and 63.7 grams of Charas
was recovered; however, the weight of the contraband was found
of
to be 1.044 kilograms during the inventory proceedings, which
makes the prosecution’s case suspect. There are reasonable
rt
grounds to believe that the petitioner is not involved in the
commission of the offence. The police have filed the charge-
sheet, and 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 Nakka at a distance of 100
meters from Toll Plaza towards Bhaged on 01.06.2025. A vehicle
bearing registration No. HR-68C-3033 came to the spot at about
7:00 p.m. The police signalled the driver to stop. The driver got
frightened after seeing the police. The police joined Het Ram and
Constable Babu Ram and enquired about the names and
addresses of the occupants of the car. The driver identified
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himself as Abhay (present petitioner). The person sitting besides
the driver’s seat identified himself as Vishal, and the persons
.
occupying the rear seats identified themselves as Abhishek and
Aman. The police checked the vehicle and recovered a carry bag
and a pistol. The police checked the carry bag and found 1
kilogram and 63.7 grams of charas. The police checked the pistol
of
and found three live cartridges in it. The occupants could not
produce a license for possessing the pistol. The police arrested
rt
the occupants of the vehicle and seized the charas and pistol. The
police checked the mobile phone of Abhishek and found a
conversation regarding the purchase of the charas. The police
arrested Ram Chand on the identification of Abhisek. No other
F.I.R. was registered against the petitioner, Abhay. The charas
was sent to the SFSL, and per the report of analysis, it was found
to be an extract of cannabis and a sample of charas. The pistol
was found to be a country-made having the traces of gunshot
residue in its barrel. The cartridges could be fired from the pistol.
The police filed the charge sheet before the Court on 28.11.2025.
Hence, the status report.
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4. I have heard Mr. Vivek Kathuria, learned counsel for
the petitioner and Mr. Lokender Kutlehria, learned Additional
.
Advocate General, for the respondent/State.
5. Mr Vivek Kathuria, learned counsel for the petitioner,
submitted that the petitioner is innocent and he was falsely
implicated. The petitioner was merely a driver in the vehicle and
of
could not be said to be in possession of the charas and the pistol
recovered from the car. The police have filed the charge-sheet,
rt
and no fruitful purpose would be served by detaining the
petitioner in custody. Hence, he prayed that the present petition
be allowed and the petitioner be released on bail.
6. Mr. Lokender Kutlehria, learned Additional Advocate
General, the respondent/State submitted that the petitioner was
travelling in the vehicle from which the recovery of a commercial
quantity of charas and a pistol was made. Rigours of Section 37 of
the NDPS Act apply to the present case, and the petitioner has
failed to satisfy the twin conditions laid down under Section 37 of
the NDPS Act. Therefore, he prayed that the present petition be
dismissed.
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7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
.
8. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC
314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:
(i) Broad principles for the grant of bail
of
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
rt
under trial, has laid down the key factors that should be
considered while granting bail, which are extracted asunder: (SCC p. 244, paras 7-9)
“7. It is thus obvious that the nature of the charge is the
vital factor, and the nature of the evidence is also
pertinent. The punishment to which the party may beliable, 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 serious offences while on bail. In regard to
habituals, it is part of criminological history that a
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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
of
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
rt
thereof, the severity of the punishment which conviction
will entail, the character, behaviour, means and standing
of the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of
the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of the
public or State and similar other considerations. It has also
to be kept in mind that for the purposes of granting the bail
the legislature has used the words “reasonable grounds for
believing” instead of “the evidence” which means the
court dealing with the grant of bail can only satisfy it (sic
itself) as to whether there is a genuine case against the
accused and that the prosecution will be able to produce
prima facie evidence in support of the charge.” (emphasis
supplied)
58. This Court in Ram Govind Upadhyay v. Sudarshan Singh,
(2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through
Banerjee, J., emphasised that a court exercising discretion
in matters of bail has to undertake the same judiciously. In
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)
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“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
of
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
rt
matrix of the matter.” (emphasis supplied)
59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC
528: 2004 SCC (Cri) 1977, this Court held that although it is
established that a court considering a bail application
cannot undertake a detailed examination of evidence and
an elaborate discussion on the merits of the case, yet the
court is required to indicate the prima facie reasons
justifying the grant of bail.
60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14
SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that
where a High Court has granted bail mechanically, the said
order would suffer from the vice of non-application of
mind, rendering it illegal. This Court held as under with
regard to the circumstances under which an order
granting bail may be set aside. In doing so, the factors
which ought to have guided the Court’s decision to grant
bail have also been detailed as under: (SCC p. 499, para 9)
“9. … It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
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
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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;
of
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
rt (vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.” (emphasis supplied)
xxxxxxx
62. One of the judgments of this Court on the aspect of
application of mind and requirement of judicious 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)4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35)
“35. While we are conscious of the fact that liberty of an
individual is an invaluable right, at the same time while
considering an application for bail courts cannot lose sight
of the serious nature of the accusations against an accused
and the facts that have a bearing in the case, particularly,
when the accusations may not be false, frivolous or
vexatious in nature but are supported by adequate material
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2026:HHC:10217facie conclusion. While considering an application for the
grant of bail, a prima facie conclusion must be supported
by reasons and must be arrived at after having regard to
the vital facts of the case brought on record. Due.
consideration must be given to facts suggestive of the
nature of crime, the criminal antecedents of the accused, if
any, and the nature of punishment that would follow a
conviction vis-Ã -vis the offence(s) alleged against an
accused.” (emphasis supplied)
9. Hon’ble Supreme Court held in State of Rajasthan v.
of
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
rt
gravity of the crime or the heinousness of the offence suggests
otherwise. It was observed at page 308:
2. The basic rule may perhaps be tersely put as bail, not
jail, except where there are circumstances suggestive offleeing 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 notintend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved is likely
to induce the petitioner to avoid the course of justice and
must weigh with us when considering the question of jail.
So also, the heinousness of the crime….”
10. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
11. The status report mentions that police intercepted a
vehicle bearing registration No HR-68C-3033 being driven by
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the petitioner. Pistol and charas were kept in the dashboard of
the vehicle and were not concealed in any manner. In Madan Lal
.
versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC
OnLineSC 874, the contraband was recovered from a vehicle, and
it was held that all the occupants of the vehicle would be in
conscious possession of the contraband. It was observed:
of
“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 that all the accused persons were travelling in a
rt
vehicle, and as noted by the trial court, they were known
to each other, and it has not been explained or shown as tohow they travelled together 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 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
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
the context of all statutes.
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23. The word “conscious” means awareness of a 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 a
.
given case need not be physical possession but can be
constructive, having power and control over the article in
the case in question, while the person to whom 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
of
498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it
was observed that where a person keeps his firearm in his
mother’s flat, which is safer than his own home, he must
be considered to be in possession of the same. (See
rt
Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB
966: (1976) 2 WLR 361 (QBD)].)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of Section
54, where a presumption is also available to be drawn
from possession of illicit articles.
27. In the factual scenario of the present case, not only
possession but conscious possession has been established.
It has not been shown by the accused-appellants that the
possession was not conscious in the logical background of
Sections 35 and 54 of the Act.”
12. Therefore, prima facie, the petitioner is to be treated
to be in possession of charas.
13. The status report mentions that the total weight of
the charas was found to be 1 kilogram and 63.7 grams on the
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spot, and 1.044 kilograms during the inventory proceedings. It
was submitted that the discrepancy in the weight will make the
.
prosecution’s case suspicious. This submission cannot be
accepted. It was laid down by this Court in Sohan Lal alias Bhau
and others Vs. State of H.P. and others, 2019 STPL 3203 HP, that the
certificate issued under Section 52-A of the ND&PS Act will
of
prevail in case of discrepancy in the weight. It was observed: –
“10. It would be evidently clear from the aforesaid
exposition of law that the samples drawn and certified by
rt
the learned Magistrate in compliance with sub-sections
(2) and (3) of Section 52-A are primary evidence and,therefore, had to be taken as true and any contradiction in
such certification with the final report prepared by the
prosecution, the quantity mentioned in the final report
obviously had to give way to the certification so made bythe Court under Section 52-A of the Act ibid.”
14. Therefore, as per the judgment, the certificate issued
by the learned Judicial Magistrate is the primary evidence, and
any discrepancy in the weight on the spot and before the learned
Magistrate during the proceedings under Section 52-A of the
NDPS Act will not be material.
15. Therefore, prima facie, the petitioner has to be treated
to be in possession of 1.044 kilograms of charas, which is a
commercial quantity, and the rigours of Section 37 of the NDPS
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Act apply to the present case. Section 37 of the NDPS Act 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)–
(a) every offence punishable under this Act shall be
cognizable.
(b) no person accused of an offence punishable for
of
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-
rt (i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there
are reasonable grounds for believing that he
is not guilty of such an 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.”
16. Hon’ble Supreme Court held in Union of India Versus
Niyazuddin & Another (2018) 13 SCC 738, that the accused cannot
be released on bail without recording a satisfaction that the
accused is not guilty of an offence and he is not likely to commit
an offence while on bail. It was observed:
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“7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said Section. They are
:
.
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,(3) Under Section 27A and
(4) Of offences involving commercial quantity.
8. The accusation in the present case is with regard to the
of
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
rtAct, 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.”
17. This position was reiterated in State of Kerala Versus
Rajesh, AIR 2020 SC 721, wherein it was held:
“19. This Court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act.
In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC
429, it has been elaborated as under: –
“7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to
and followed. It should be borne in mind that in a::: Downloaded on – 06/04/2026 20:34:34 :::CIS
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2026:HHC:10217murder 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 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 theof
large stake and illegal profit involved. This Court,
dealing with the contention with regard to
punishment under the NDPS Act, has succinctly
observed about the adverse effect of such activities
rt
in Durand Didier vs. Chief Secy. Union Territory of
Goa, (1990) 1 SCC 95) as under:
24. With deep concern, we may point out
that the organised activities of the
underworld and the clandestine
smuggling of narcotic drugs andpsychotropic substances into this
country and illegal trafficking in such
drugs and substances have led to drugaddiction among a sizeable section of the
public, particularly the adolescents andstudents 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 guiltyof such offence; and
(ii) that he is not likely to commit any
offence while on bail are satisfied. Theof
High Court has not given any justifiable
reason for not abiding by the aforesaid
mandate while ordering the release of
the respondent accused on bail. Instead
rt of attempting to take a holistic view of
the harmful socio-economicconsequences and health hazards which
would accompany trafficking illegally in
dangerous drugs, the court should
implement the law in the spirit withwhich 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 twin
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 for 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 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
of
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.”
18. A similar view was taken in Union of India v. Mohd.
rt
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 ofsuch 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
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Shanker Kesari, (2007) 7 SCC 798: (2007) 3 SCC (Cri) 505],
held that: (SCC pp. 801-02, paras 7-8 & 10-11)
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means
.
something more than prima facie grounds. It
connotes substantial probable causes for believing
that the 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
of
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
rt 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 idiosyncrasy 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
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2026:HHC:10217
analysis, it is a question of fact whether a
particular act is reasonable or not, which
depends on the circumstances in a given
situation. (See Municipal Corpn. of Greater
.
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC
315]
11. The court, while considering the application
for bail with reference to Section 37 of the Act,
is not called upon to record a finding of not
guilty. It is for the limited purpose, essentially
of
confined to the question of releasing the
accused on bail, that the court is called upon to
see if there are reasonable grounds for
rt 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.”
19. This position was reiterated in Narcotics Control
Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891, wherein it was
observed:
“11. 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::: Downloaded on – 06/04/2026 20:34:34 :::CIS
20
2026:HHC:10217certain 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 Criminal Procedure.
Code, 1973, to be kept in mind, but the restrictions placed
under clause (b) of sub-section (1) of Section 37 are also to
be factored in. The conditions imposed in subsection (1) of
Section 37 are that (i) the Public Prosecutor ought to begiven 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 satisfiedof
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.
rt
12. The expression “reasonable grounds” has come up for
discussion in several rulings of this Court. In “Collector ofCustoms, New Delhi v. Ahmadalieva Nodira” (2004) 3 SCC
549, a decision rendered by a Three Judges Bench of this
Court, it has been held thus: —
“7. The limitations on granting 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 have relevance so faras the present accused-respondent is concerned, are
the satisfaction of the court that there are reasonablegrounds 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 arecumulative 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 the existence of such facts and
circumstances as are sufficient in themselves to justify::: Downloaded on – 06/04/2026 20:34:34 :::CIS
21
2026:HHC:10217satisfaction 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 v. Rajesh” (2020) 12 SCC 122,.
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
the existence of such facts and circumstances as are
of
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
rt
addition to the limitations provided under the CrPC, or
any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for.” [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. Dovetailed 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 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
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2026:HHC:10217
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 that he is unlikely to commit an offence
under the Act while on bail he is unlikely to commit an
offence under the Act while on bail.”
20. In the present case, prima facie, the petitioner was
found in possession of 1.044 kilograms of charas, which is a
of
commercial quantity. There is nothing to indicate that he is not
likely to commit a similar offence in the event of his release on
rt
bail; therefore, the petitioner has failed to satisfy the twin
conditions laid down under Section 37 of the NDPS Act.
21. It was submitted that there is a delay in the progress
of the trial, and the petitioner is entitled to bail. This submission
cannot be accepted. It was laid down by the Hon’ble Supreme
Court in Union of India vs. Vijin K. Varghese 2025:INSC:1316 that
bail cannot be granted on the ground of prolonged incarceration
without satisfying the twin conditions laid down under Section
37 of the NDPS Act. It was observed: –
“17. The High Court then, on the strength of those
premises, recorded a finding that there exist reasonable
grounds to believe that the applicant is not guilty of the
alleged offence, treating prolonged incarceration and
likely delay as the justification for bail. Such a finding is
not a casual observation. It is the statutory threshold::: Downloaded on – 06/04/2026 20:34:34 :::CIS
23
2026:HHC:10217under 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 the
appreciation of evidence which would be in the domain of
the trial court at first instance.
18. This Court ordinarily shows deference to the discretion
exercised by the High Court while considering the grant of
bail. However, offences involving a commercial quantityof
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
rt
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 seizureof narcotic drugs and psychotropic substances only days
prior to the seizure forming the subject matter of the
present complaint, nor do they engage with theprosecution’s assertion as to the respondent’s role in
arranging, importing, clearing and supervising theconsignments. The omission to consider these factors
bears directly upon the statutory satisfaction required by
Section 37(1)(b).”
22. A similar view was taken in Union of India v Namdeo
Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025,
wherein it was observed:
“11. In the present case, this Court finds that though the
Respondent-accused was in custody for one year, four
months, and charges have not been framed, yet the::: Downloaded on – 06/04/2026 20:34:34 :::CIS
24
2026:HHC:10217allegations are serious inasmuch as not only is the
recovery much in excess of the commercial quantity, but
the Respondent-accused allegedly got the cavities
ingeniously fabricated below the trailer to conceal the.
contraband.
12. Prima facie, this Court is of the opinion that the
Respondent-accused is involved in drug trafficking in an
organised manner. Consequently, no case for dispensingwith the mandatory requirement of Section 37 of the NDPS
Act is made out in the present matter.”
23. Therefore, it is impermissible to grant bail on the
of
ground of delay alone when the petitioner has not satisfied the
requirement of Section 37 of the NDPS Act.
rt
24. No other point was urged.
25. In view of the above, the present petition fails, and it is
dismissed.
26. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever, on
the case’s merits.
(Rakesh Kainthla)
Judge
06th April, 2026
(ravinder)
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