IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 3028 of 2025

Reserved on: 16.01.2026

Date of Decision:23.01.2026

Ajay Kumar ...Petitioner

Versus

State of Himachal Pradesh ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Vacation Judge.

Whether approved for reporting?

1

For the Petitioner : M/s Rakesh Kumar Chaudhary

and Panku Chaudhary,

Advocate.

For the Respondent/State : Mr Ajit Sharma, Deputy

Advocate General.

Rakesh Kainthla, Vacation Judge

The petitioner has filed the present petition for

regular bail in F.I.R. No. 55 of 2024, dated 11.03.2024, registered

in Police Station Baddi, District Solan, H.P., for the commission

of offences punishable under Sections 20 and 29 of the Narcotic

Drugs and Psychotropic Substances Act (NDPS), 1985.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2

2. It has been asserted that, as per the prosecution, the

police recovered 10.200 kgs of charas from a vehicle bearing

registration No. HP-81-2679, in which Dinesh Kumar was

present in the driver’s seat, and Ajay Kumar (present bail

petitioner) was occupying the front seat. The police arrested the

occupants of the vehicle and seized the charas and the vehicle.

The petitioner has been in custody for one year and eleven

months, and the trial has not commenced. The petitioner is

innocent, and he was falsely implicated in the case. The

contraband did not belong to the petitioner, and the police have

failed to connect the contraband to the petitioner. The police

recovered a passbook from the bag containing the contraband,

which does not belong to the petitioner, raising a serious doubt

about his involvement. The grounds of arrest were not

communicated to the petitioner. The police have filed the charge

sheet before the Court, and no fruitful purpose would be served

by detaining the petitioner in custody. The petitioner would

abide by the terms and conditions that the Court may impose.

Therefore, it was prayed that the present petition be allowed and

the petitioner be released on bail.

3

3. The petition is opposed by filing a status report,

asserting that the police were present near Hotel Amarpali on

11.03.2024. They received secret information that Dinesh Kumar

and Ajay Kumar had brought charas for sale. They were selling

the charas from their vehicle bearing registration No. HP-81-

2679. A huge quantity of charas could be recovered by searching

the vehicle. The delay in procuring the search warrant would

have led to the destruction of the charas; hence, the information

was reduced to writing and was sent to the Addl. Superintendent

of Police, Baddi. Bhag Singh was associated, and the police went

to the vehicle bearing Registration No. HP-81-2679. The driver

identified himself as Ajay Kumar (the present petitioner). The

police checked the vehicle and recovered 20 packets, each

weighing 510 grams of charas. The police also recovered a

passbook of Sher Singh. The police seized the charas and

arrested the occupants of the vehicle. Subsequently, Anku was

arrested based on the information provided by the petitioner.

The charas was sent to SFSL, Junga and as per the report of

analysis, it was confirmed to be a sample of charas. The police

filed the charge sheet before the Court on 05.09.2024. The

matter is listed for the prosecution’s evidence on 13.02.2026.

4

The statements of seven witnesses out of 24 witnesses have been

recorded. Hence, the status report.

4. I have heard M/s Rakesh Chaudhary and Panku

Chaudhary, Advocates for the petitioner and Mr Ajit Sharma,

learned Deputy Advocate General for the respondent/State.

5. Mr Rakesh Chaudhary, learned counsel for the

petitioner, submitted that the petitioner is innocent and he was

falsely implicated. There is no material to connect him to the

commission of the crime. There is a violation of the petitioner’s

right to a speedy trial, and the petitioner is entitled to bail on

this consideration; hence, he prayed that the petition be allowed

and the petitioner be released on bail.

6. Mr Ajit Sharma, learned Deputy Advocate General for

the respondent/State submitted that the petitioner was found

present in the vehicle from which a commercial quantity of

charas was recovered. Rigours of Section 37 of the NDPS Act

apply to the present case, and the petitioner has failed to satisfy

the conditions laid down in Section 37 of the NDPS Act; hence,

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.

5

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

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

pertinent. The punishment to which the party may be

liable, if convicted or a conviction is confirmed, also

bears upon the issue.

8. Another relevant factor is whether the course of justice

would be thwarted by him who seeks the benignant

jurisdiction of the Court to be freed for the time being.

[Patrick Devlin, “The Criminal Prosecution in England”

(Oxford University Press, London 1960) p. 75 —

Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

9. Thus, the legal principles and practice validate the Court

considering the likelihood of the applicant interfering

with witnesses for the prosecution or otherwise polluting

the process of justice. It is not only traditional but rational,

in this context, to enquire into the antecedents of a man

who is applying for bail to find whether he has a bad

record, particularly a record which suggests that he is

likely to commit 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

6

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

basis of well-settled principles, having regard to the

circumstances of each case and not in an arbitrary

manner. While granting the bail, the court has to keep in

mind the nature of accusations, the nature of evidence in

support thereof, the severity of the punishment which

conviction will entail, the character, behaviour, means

and standing of the accused, circumstances which are

peculiar to the accused, reasonable possibility of securing

the presence of the accused at the trial, reasonable

apprehension of the witnesses being tampered with, the

larger interests of the public or State and similar other

considerations. It has also to be kept in mind that for the

purposes of granting the bail the legislature has used the

words “reasonable grounds for believing” instead of “the

evidence” which means the court dealing with the grant

of bail can only satisfy it (sic itself) as to whether there is a

genuine case against the accused and that the prosecution

will be able to produce 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

7

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

the grant of bail. The nature of the offence is one of the

basic considerations for the grant of bail — the more

heinous is the crime, the greater is the chance of rejection

of the bail, though, however, dependent on the factual

matrix of the matter.” (emphasis supplied)

59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7

SCC 528: 2004 SCC (Cri) 1977, this Court held that although

it is established that a court considering a bail application

cannot undertake a detailed examination of evidence and

an elaborate discussion on the merits of the case, yet the

court 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:

8

(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;

(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

2856 and 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 brought on record to enable a court to arrive at a

prima facie conclusion. While considering an application

for the grant of bail, a prima facie conclusion must be

9

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-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.

10. The status report mentions that the police

intercepted a vehicle bearing registration No. HP-81-2679 and

found the petitioner travelling in it. The police recovered 20

packets, each weighing 510 grams of charas, from the vehicle. 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

facts which 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,

10

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.

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 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

11

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 was in

possession of the charas, and the burden would shift upon him

to show that he was not in conscious possession as per Sections

35 and 54 of the NDPS Act.

10. There is no material to rebut the presumption at this

stage. Hence, the prosecution’s version has to be prima facie

accepted as correct that the police had recovered a commercial

quantity of charas from the vehicle, and the rigours of Section 37

of the NDPS Act apply to the present case.

11. 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. –

12

(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 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, 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

(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.”

12. 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

13

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) 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 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.”

13. 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

14

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 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

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 and psychotropic substances into this

country and illegal trafficking in such drugs

and substances have led to drug addiction

among a sizeable section of the public,

particularly the adolescents and students of

both sexes and the menace has assumed

serious and alarming proportions in the

recent years. Therefore, in order to effectively

control and eradicate this proliferating and

booming devastating menace, causing

deleterious effects and a deadly impact on

society as a whole, Parliament, in its wisdom,

has made effective provisions by introducing

Act 81 of 1985 specifying mandatory

minimum imprisonment and fine.

8. To check the menace of dangerous drugs

flooding the market, Parliament has provided that

the person accused of offences under the NDPS Act

should not be released on bail during trial unless

the mandatory conditions provided in Section 37,

namely,

15

(i) there are reasonable grounds for believing

that the accused is not guilty of such offence;

and

(ii) that he is not likely to commit any offence

while on bail are satisfied. The High Court has

not given 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 with which

Parliament, after due deliberation, has

amended."

20. The scheme of Section 37 reveals that the exercise of

power to grant bail is not only subject to the limitations

contained under Section 439 of the CrPC but is also

subject to the limitation placed by Section 37, which

commences with the non-obstante clause. The operative

part of the said section is in the negative form prescribing

the enlargement of bail to any person accused of the

commission of an offence under the Act unless the two

conditions are satisfied. The first condition is that the

prosecution must be given an opportunity to oppose the

application, and the second is that the Court must be

satisfied that there are reasonable 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

16

accused is not guilty of the alleged offence. In the case at

hand, the High Court seems to have completely

overlooked the underlying object of Section 37 that, in

addition to the limitations provided under 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.”

14. 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:

“21. Under Section 37(1)(b)(ii), the limitations on the

grant of bail for offences punishable under Sections 19, 24

or 27-A and also for offences involving a commercial

quantity are:

( i) The Prosecutor must be given an opportunity to

oppose the application for bail; and

(ii) There must exist “reasonable grounds to

believe” that (a) the person is not guilty of such an

offence, and (b) he is not likely to commit any

offence while on bail.

22. The standard prescribed for the grant of bail is

“reasonable ground to believe” that the person is not

guilty 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

17

sufficient in themselves to justify the recording of

satisfaction that the accused is not guilty of the offence

charged.

8 . The word “reasonable” has in law the prima facie

meaning of reasonable in regard to those

circumstances of which the actor, called on to act

reasonably, knows or ought to know. It is difficult

to give an exact definition of the word

“reasonable”.

‘ 7. … Stroud's Judicial Dictionary, 4th Edn., p. 2258

states that it would be unreasonable to expect an

exact definition of the word “reasonable”. Reason

varies in its conclusions according to the

idiosyncrasies of the individual and the times and

circumstances in which he thinks. The reasoning

which built up the old scholastic logic sounds now

like the jingling of a child's toy.’

[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

18

court is called upon to see if there are reasonable

grounds for believing that the accused is not guilty

and records its satisfaction about the existence of

such grounds. But the court has not to consider the

matter as if it is pronouncing a judgment of

acquittal and recording a finding of not guilty.”

(emphasis supplied)

23. Based on the above precedent, the test which the High

Court and this Court are required to apply while granting

bail is whether there are reasonable grounds to believe

that the accused has not committed an offence and

whether he is likely to commit any offence while on bail.

Given the seriousness of offences punishable under the

NDPS Act and in order to curb the menace of drug

trafficking in the country, stringent parameters for the

grant of bail under the NDPS Act have been prescribed.”

15. 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

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 hereinbelow:—

“37. Offences to be cognisable and non-bailable.-

19

(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 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 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.

16. 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 satisfaction of conditions under Section

20

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 relating to Narcotic drugs. The object and

reasons given in the acts themselves read thus:—

“An act to consolidate and amend the law relating to

narcotic drugs, to make stringent provisions for the

control and regulation of operations relating to narcotic

drugs and psychotropic substances, to provide for the

forfeiture of property derived from, or used in, illicit traffic

in narcotic drugs and psychotropic substances, to

implement the provisions of the International Convention

on Narcotic Drugs and Psychotropic Substances and 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.

As relates to the twin conditions under Section

37(1)(b)(ii) of the NDPS Act, viz., that, firstly, there are

21

reasonable grounds for believing that the accused is not

guilty of such offence and, secondly, he is not likely to

commit any offence while on bail it was held therein that

they are cumulative and not alternative. Satisfaction of

the existence of those twin conditions had to be based on

the ‘reasonable grounds’, as referred to above.

7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC

122, after reiterating the broad parameters laid down by

this Court to be followed while considering an application

for bail moved by an accused involved in offences under

the NDPS Act, in paragraph 18 thereof this Court held that

the scheme of Section 37 of the NDPS Act would reveal

that the exercise of power to grant bail in 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.”

17. 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 the petitioner would not indulge in the commission of an

22

offence if released on bail. Hence, he has not satisfied the twin

conditions laid down in Section 37 of the ND&PS Act.

18. It was submitted that the grounds of arrest were not

communicated to the petitioner, and his arrest is illegal. This

submission is not acceptable. Hon’ble Supreme Court held in

Mihir Rajesh Shah v. State of Maharashtra, 2025 SCC OnLine SC

2356 that the communication of the grounds of the arrests in all

the offences would apply prospectively from the date of the

pronouncement of the judgment. It was observed:

“58. We are cognizant that there existed no consistent or

binding requirement mandating the written

communication of the grounds of arrest for all the

offences. Holding as above, in our view, would ensure

implementation of the constitutional rights provided to

an arrestee as engrafted under Article 22 of the

Constitution of India in an effective manner. Such clarity

on obligation would avoid uncertainty in the

administration of criminal justice. The ends of fairness and

legal discipline, therefore, demand that this procedure, as

affirmed above, shall govern arrests henceforth.” (Emphasis

supplied)

19. This judgment was followed by a co-ordinate bench

of this Court in Kabir Khan vs State 2025:HHC:39246, wherein it

was observed:

“7. In light of the fact that in the said judgment, Hon’ble

Supreme Court has been pleased to clearly hold that as

previously there existed no consistent or binding

23

requirements mandating written communication of the

grounds of arrest for all the offences, the ends of fairness

and legal discipline, therefore, demand that this

procedure as affirmed shall govern arrests henceforth,

this means that the Hon’ble Supreme Court has been

pleased to make directions issued therein prospective.”

20. It was submitted that the ‘bail is a Rule and Jail is an

exception,’ and the petitioner is entitled to bail on this

consideration. This submission will not help the petitioner, as

he is, prima facie, involved in the commission of an offence

punishable 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

punishable 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 application for bail, the court has to bear

in mind the provisions of Section 37 of the NDPS Act,

which are mandatory in nature. The recording of findings

as mandated in Section 37 is a sine qua non for granting

bail to the accused involved in the offences under the said

Act.”

21. No other point was urged.

24

22. In view of the above, the present petition fails, and

the same is dismissed.

23. The observation made hereinbefore shall remain

confined to the disposal of the instant petition and will have no

bearing, whatsoever, on the merits of the case.

(Rakesh Kainthla)

Vacation Judge

23

rd

January, 2026

(Gaurav Rawat)