Ashok Kumar vs State Of Rajasthan (2026:Rj-Jd:13931) on 17 March, 2026

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    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

    SPONSORED

    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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    “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
    grant of bail, its liberal approach in the matter of bail

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    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).

    20. We are of the view that, in the facts of this case, it would not be
    appropriate for this Court at the threshold stage itself to render findings

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    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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