Himachal Pradesh High Court
Arjun Singh @ Shiva vs Of on 3 March, 2026
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2948 of 2025
.
Reserved on: 24.02.2026.
Date of Decision: 03.03.2026.
Arjun Singh @ Shiva ...Petitioner
Versus
of
State of Himachal Pradesh ...Respondent
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr Yashveer Singh Rathore,
Advocate.
For the Respondent/State : Mr Prashant Sen, Deputy
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
regular bail in F.I.R. No. 162 of 2024, dated 25.10.2025, registered in
Police Station Jawali, District Kangra, H.P., for the commission of
offences punishable under Sections 20 and 29 of the Narcotic Drugs
and Psychotropic Substances Act (NDPS).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that the allegations against the
petitioner are false, and no case is made out against him. The
.
petitioner is a respectable person in society, and a false recovery
was planted against the petitioner. The police gave beatings to the
petitioner, and he sustained injuries. The police concocted a false
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case against the petitioner to save themselves. The police have
filed the charge sheet before the Court, and the conclusion of the
rt
trial is likely to take some time. No fruitful purpose would be
served by keeping the petitioner in custody. FIR No. 117 of 2019 is
pending against the petitioner. Hence, it was prayed that the
present petition be allowed and the petitioner be released on bail.
3. The petition is opposed by filing a status report
asserting that the police were on patrolling duty on 25.10.2024.
They stopped a vehicle bearing registration No. HP-97A-0842 and
recovered 6.058 kgs of charas from it. They arrested driver Arjun
Singh (the present petitioner) and occupant Vipin Kumar. The police
interrogated them, and Arjun Singh revealed during the
interrogation that he had purchased Charas from Maheshwar Singh
for ₹ 2,50,000/-. Vipin Kumar revealed during the interrogation that
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Arjun Singh had promised to pay ₹5,000/- to him. The police
interrogated Ajay Kumar, and he revealed that he was working in
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the shop of Shubhkaran. Shubhkaran was arrested in a case of
charas. Arjun Singh started looking after the shop. Arjun Singh
asked Ajay Kumar to transfer the money to various persons as the
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accounts of Shubhkaran were seized by the police. Ajay Kumar had
transferred ₹27,000/- to Maheshwar Singh’s account. The police
rt
arrested Maheshwar Singh, who revealed during the inquiry that he
had sold 06 kg of charas to Arjun Singh through Somdev. The police
recovered the bank details of Maheshwar Singh and found that
some vouchers mentioned the name of Ajay Kumar. The report of
analysis confirmed the substance to be charas; hence, the status
report.
4. I have heard Mr Yashveer Singh Rathore, Advocate,
learned counsel for the petitioner and Mr Prashant Sen, learned Dy.
Advocate General for the respondent/State.
5. Mr Yashveer Singh Rathore, learned counsel for the
petitioner, submitted that the petitioner is innocent and that he was
falsely implicated. The prosecution’s version is highly improbable.
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The police gave beatings to the petitioner and concocted a false
case to save themselves. The petitioner was arrested on
.
25.10.2024, and the prosecution has failed to complete the
evidence expeditiously, which violates the petitioner’s right to a
speedy trial. Therefore, he prayed that the present petition be
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allowed and the petitioner be released on bail.
6. Mr Prashant Sen, learned Dy. Advocate General for the
rt
respondent/State submitted that the petitioner was found in
possession of 6.058 grams of charas, which is a commercial
quantity, and the rigours of Section 37 of the NDPS Act apply to the
present case. The petitioner has not satisfied the twin conditions
laid down in Section 37 of the NDPS Act. Therefore, he prayed that
the present petition be dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the 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
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56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1
SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating
on the content of Article 21 of the Constitution of India in.
the context of personal liberty of a person under trial, has
laid down the key factors that should be considered while
granting bail, which are extracted as under: (SCC p. 244,
paras 7-9)
“7. It is thus obvious that the nature of the charge is the
vital factor, and the nature of the evidence is also
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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
rt
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
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
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with an application seeking bail. The same may be extracted
as follows: (SCC pp. 284-85, para 8)
“8. The jurisdiction to grant bail has to be exercised on the
.
basis of well-settled principles, having regard to the
circumstances of each case and not in an arbitrary manner.
While granting the bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction will
entail, the character, behaviour, means and standing of the
of
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
rt
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)
“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
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case. While the placement of the accused in society, though it
may be considered by itself, cannot be a guiding factor in
the matter of grant of bail, the same should always be
.
coupled with other circumstances warranting the grant of
bail. The nature of the offence is one of the basic
considerations for the grant of bail — the more heinous is
the crime, the greater is the chance of rejection of the bail,
though, however, dependent on the factual matrix of the
matter.” (emphasis supplied)
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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
rt
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 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:
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(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;
of
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by grant
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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 accusedis 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 (PappuKumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and
Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) ofthe 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
brought on record to enable a court to arrive at a prima
facie conclusion. While considering an application for the
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9reasons and must be arrived at after having regard to the
vital facts of the case brought on record. Due consideration
must be given to facts suggestive of the nature of crime, the.
criminal antecedents of the accused, if any, and the nature
of punishment that would follow a conviction vis-à-vis the
offence(s) alleged against an accused.” (emphasis supplied)
9. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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10. The status report shows that the police signalled the
driver of the vehicle bearing No. HP-97A-0842 to stop. However,
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the driver reversed his vehicle at a high speed and hit another
vehicle bearing the registration no. HP-47A-1878. He sped the
vehicle towards Kutheher and hit ASI Vijay Kashyap. The police
intercepted the vehicle and found that the petitioner was driving
the vehicle. Police checked the vehicle in the presence of an
independent witness and recovered 6.058 kilograms of charas.
These allegations prima facie show the involvement of the
petitioner in the commission of crime.
11. It was submitted that the allegations in the status
report are incorrect. The petitioner was beaten by the police, and
he had sustained injuries. The police officials made a false story to
save themselves. This submission will not help the petitioner. The
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bail Court has to see a prima facie case while deciding the bail
petition. There is nothing on record to corroborate the plea taken
.
by the petitioner. On the other hand, the prosecution version is duly
corroborated by the recovery made from the vehicle, the statement
of an independent witness and the injuries sustained by ASI Vinay
of
Kashyap.
12. The petitioner was driving the vehicle from which
rt
recovery was effected. In Madan Lal versus State of H.P. (2003) 7
SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the
contraband was 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:
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The factswhich can be culled out from the evidence on record are
that all 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
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::: Downloaded on – 03/03/2026 20:40:33 :::CIS
11submitted 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
which assumes different colours in different contexts. It may
carry different meanings in contextually differentof
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
rt
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 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 beconstructive, having power and control over the article in
the case in question, while the person to whom physicalpossession is given holds it subject to that power or control.
25. The word “possession” means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC
498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it was
observed that where a person keeps his firearm in his
mother’s flat, which is safer than his own home, he must be
considered to be in possession of the same.
(See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976
QB 966: (1976) 2 WLR 361 (QBD)].)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
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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
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Sections 35 and 54 of the Act.”
13. Therefore, the prosecution’s version that the petitioner
rt
was found in possession of 6.058 kgs of charas has to be prima facie
accepted as correct.
14. The Central Government has notified 1 Kilogram of
charas as a commercial quantity. Therefore, the petitioner was
found in possession of a commercial quantity of charas, and the
rigours of Section 37 of the NDPS Act apply to the present case.
15. Section 37 of the NDPS Act provides that in an offence
involving a commercial quantity, the Court should be satisfied that
the accused is not guilty of the commission of an offence and is not
likely to commit any offence while on bail. It reads as follows:
“37. Offences to be cognisable 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
cognisable.
(b) no person accused of an offence punishable for
.
offences under section 19, section 24, or section 27A
and also for offences involving commercial quantity,
shall be released on bail or his own bond unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
of
(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 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. This Section was interpreted by the Hon’ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
738, and it was held that in the absence of the satisfaction that the
accused is not guilty of an offence and he is not likely to commit an
offence while on bail, he cannot be released. It was observed:
“7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said Section. They are:
(1) In the case of a person accused of an offence
punishable under Section 19,(2) Under Section 24,
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14(3) Under Section 27A and
(4) offences involving a commercial quantity.
8. The accusation in the present case is with regard to the
.
fourth factor, namely, commercial quantity. Be that as it
may, once the Public Prosecutor opposes the application for
bail to a person accused of the enumerated offences under
Section 37 of the NDPS Act, in case the court proposes to
grant bail to such a person, two conditions are to be
mandatorily satisfied in addition to the normal requirements
of
under the provisions of the Cr.P.C. or any other enactment.
(1) The court must be satisfied that there are
rt 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 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
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15temporarily, in all probability, they would continue
their nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. The reason may be the.
large stake and 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 inDurand Didier vs Chief Secy. Union Territory of Goa,
(1990) 1 SCC 95) as under:
of
24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugs
and psychotropic substances into this country
rt and illegal trafficking in such drugs and
substances have led to drug addiction among asizeable section of the public, particularly the
adolescents and students of both sexes and the
menace has assumed serious and alarmingproportions 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 minimumimprisonment 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 accused is not guilty of such offence;
and
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(ii) that he is not likely to commit any offence
while on bail are satisfied. The High Court has
not given any justifiable reason for not abiding
.
by the aforesaid mandate while ordering the
release of the respondent accused on bail.
Instead of attempting to take a holistic view of
the harmful socio-economic consequences and
health hazards which would accompany
trafficking illegally in dangerous drugs, the
court should implement the law in the spirit
of
with which Parliament, after due deliberation,
has amended.”
20. The scheme of Section 37 reveals that the exercise of
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power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also subject
to the limitation placed by Section 37, which commences
with the non-obstante clause. The operative part of the said
section is in the negative form prescribing the enlargement
of bail to any person accused of the commission of an
offence under the Act unless the two conditions are satisfied.
The first condition is that the prosecution must be given an
opportunity to oppose the application, and the second is
that the Court must be satisfied that there are reasonable
grounds for believing that he is not guilty of such an offence.
If either of these two conditions is not satisfied, the ban on
granting bail operates.
21. The expression “reasonable grounds” means something
more than prima facie grounds. It contemplates substantial
probable causes for believing that the accused is not guilty
of the alleged offence. The reasonable belief contemplated
in the provision requires the existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case at hand, the High Court seems to have
completely overlooked the underlying object of Section 37
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that, in addition to the limitations provided under the CrPC,
or any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail under
.
the NDPS Act is indeed uncalled for.”
18. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237, wherein it was observed at page 110:
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“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:
rt
(i) The Prosecutor must be given an opportunity to
oppose the application for bail; and
(ii) There must exist “reasonable grounds to believe”
that (a) the person is not guilty of such an offence,
and (b) he is not likely to commit any offence while on
bail.
22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person is not guilty
of the offence. Interpreting the standard of “reasonable
grounds to believe”, a two-judge Bench of this Court in Shiv
Shanker Kesari [Union of India v. Shiv Shanker Kesari, (2007)
7 SCC 798: (2007) 3 SCC (Cri) 505], held that: (SCC pp. 801-02,
paras 7-8 & 10-11)
“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
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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
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exact definition of the word “reasonable”. Reason
varies in its conclusions according to the
idiosyncrasies of the individual and the times and
rt
circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds now like
the jingling of a child’s toy.’
[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para
7 and Gujarat Water Supply & Sewerage Board v.
Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water
Supply & Sewerage Board v. Unique Erectors (Gujarat)
(P) Ltd., (1989) 1 SCC 532] ]
***
10. The word “reasonable” signifies “in accordance
with reason”. In the ultimate analysis, it is a question
of fact whether a particular act is reasonable or not,
which depends on the circumstances in a given
situation. (See Municipal Corpn. of Greater Mumbai v.
Kamla Mills Ltd. [Municipal Corpn. of Greater Mumbai
v. Kamla Mills Ltd. (2003) 6 SCC 315]
11. The court, while considering the application for
bail with reference to Section 37 of the Act, is not called
upon to record a finding of not guilty. It is for the
limited purpose essentially confined to the question of
releasing the accused on bail that the court is called
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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
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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
rt
country, stringent parameters for the grant of bail under the
NDPS Act have been prescribed.”
19. It was held in Union of India v. Ajay Kumar Singh, 2023
SCC OnLine SC 346, that bail cannot be granted without complying
with the requirement of Section 37 of the NDPS Act. It was
observed:
4. This apart, it is noticed that the High Court, in passing the
impugned order of bail, had lost sight of Section 37 of theNDPS 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
hereinbelow:–
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20
“37. Offences to be cognisable and non-bailable.-
(1) Notwithstanding anything contained in the
Criminal Procedure Code, 1973 (2 of 1974)-
.
(a) every offence punishable under this Act shall be
cognisable.
(b) no person accused of an offence punishable for
offences under section 19 or section 24 or section
27A, and also for offences involving commercial
quantity, shall be released on bail or on his own
of
bond unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
rt release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to
commit any offence while on bail.”
16. In view of the above provisions, it is implicit that no
person accused of an offence involving trade in a
commercial quantity of narcotics is liable to be released on
bail unless the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an offence
and that he is not likely to commit any offence while on bail.
20. It was held in State of Meghalaya v. Lalrintluanga Sailo,
2024 SCC OnLine SC 1751, that the grant of bail without considering
Section 37 of the NDPS Act is impermissible. It was observed:
“5. There cannot be any doubt with respect to the position
that, in cases involving the commercial quantity of narcotic
drugs or psychotropic substances, while considering the
application of bail, the Court is bound to ensure the::: Downloaded on – 03/03/2026 20:40:33 :::CIS
21satisfaction 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 the NDPS Act, one
cannot be oblivious of the objects and reasons for bringing
the said enactment after repealing the then-existing laws
of
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
rt
narcotic drugs, to make stringent provisions for the control
and regulation of operations relating to narcotic drugs andpsychotropic substances, to provide for the forfeiture of
property derived from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to implement theprovisions of the International Convention on Narcotic Drugs
and Psychotropic Substances and for matters connected
therewith.”
In the decision in Collector of Customs, New Delhi v.
Ahmadalieva Nodira (2004) 3 SCC 549, the three-judge bench
of this Court considered the provisions under Section 37(1)
(b) as also 37(1)(b)(ii) of the NDPS Act, with regard to the
expression “reasonable grounds” used therein. This Court
held that it means something more than the prima facie
grounds and that it contemplates substantial and probable
causes for believing that the accused is not guilty of the
alleged offence. Furthermore, it was held that the
reasonable belief contemplated in the provision would
require the existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence.
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22
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
7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC
of
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
rt
of Section 37 of the NDPS Act would reveal that the exercise
of power to grant bail in such cases is not only subject to the
limitations contained under Section 439 of the Code of
Criminal Procedure, but also subject to the limitation placed
by Section 37(1)(b)(ii), NDPS Act. Further, it was held that in
case one of the two conditions thereunder is not satisfied,
the ban on granting bail would operate.
8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS
Act and the decisions referred supra reveal the consistent
view of this Court that while considering the application for
bail made by an accused involved in an offence under the
NDPS Act, a liberal approach ignoring the mandate under
Section 37 of the NDPS Act is impermissible. Recording a
finding mandated under Section 37 of the NDPS Act, which is
a sine qua non for granting bail to an accused under the
NDPS Act, cannot be avoided while passing orders on such
applications.”
21. In the present case, the prosecution has collected
sufficient material to prima facie connect the petitioner with the
commission of the crime. There is nothing on record to show that
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23
the petitioner will not indulge in the commission of an offence if
released on bail. Hence, he has not satisfied the twin conditions laid
.
down in Section 37 of the ND&PS Act.
22. It was submitted that the bail is a Rule and Jail is an
exception, and the petitioner is entitled to bail on this
of
consideration. This submission will not help the petitioner, as he is
prima facie involved in the commission of an offence punishable
rt
under Section 20 of the NDPS Act involving the commercial
quantity. It was laid down by the Hon’ble Supreme Court in
Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372: 2024 SCC
OnLine SC 3848 that in cases under the NDPS Act involving the
commercial quantity, the negation of bail is the rule and its grant an
exception. It was observed at page 381:
“Compliance with the mandate under Section 37
9. There has been a consistent and persistent view of this
Court that in the NDPS cases, where the offence is punish-
able with a minimum sentence of ten years, the accused
shall generally not be released on bail. Negation of bail is the
rule, and its grant is an exception. While considering the appli-
cation for bail, the court has to bear in mind the provisions
of Section 37 of the NDPS Act, which are mandatory in na-
ture. 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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24
24. No other point was urged.
25. In view of the above, the present petition fails, and the
.
same is dismissed.
26. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
of
bearing whatsoever on the merits of the case.
rt (Rakesh Kainthla)
Judge
3rd March, 2026
(jai)
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