2026:HHC:10485

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 254 of 2026

Reserved on: 1.4.2026

Date of Decision: 7.4.2026.

Ashok …. Petitioner

Versus

State of HP …. Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No.

For the Petitioner : Mr Deepak Kaushal, Senior

Advocate, with Mr Abhishek

Verma, Advocate.

For the Respondent/State : Mr Ajit Sharma, Deputy

Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail in FIR No. 234 of 2025, dated 14.10.2025,

registered at Police Station Paonta Sahib, District Sirmour, H.P.,

for the commission of offences punishable under Sections 22 and

29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS

Act).

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 petitioner was falsely

implicated in the present case based on suspicion. No recovery

was effected from the petitioner. The police have filed the charge

sheet, 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. 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 14.10.2025.

They received a secret information at about 6.45 PM that Ashok

(the present petitioner) and Sunny were carrying intoxicating

capsules in the motorcycle bearing registration No. UP-11CR-

4563. The information was credible, and the delay in procuring

the search warrant would have led to the destruction of the case

property. Hence, the information was reduced to writing and was

sent to the Sub Divisional Police Officer (SDPO), Sirmour. The

police joined Up-Pradhan Dilbag Singh and Saravjeet Singh and

waited for the motorcycle. The motorcycle reached the spot at

around 7:20 PM. The police signalled the motorcyclist to stop.

The driver, Ashok (the present petitioner), and the pillion rider,

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Sunny, identified themselves. The police checked the backpack

being carried by Sunny and found 3120 capsules of Spasmore

containing Tramadol Hydrochloride. The police seized the

capsules, and the motorcycle and arrested the motorcyclists.

Sunny identified the shop from where the capsules were

purchased. One accused, Ahbab, is yet to be arrested. No other

FIR was registered against the petitioner. As per the result of the

analysis, the capsules of Spasmore contained Tramadol

Hydrochloride. Hence, the status report.

4. I have heard Mr Deepak Kaushal, learned Senior

Counsel, assisted by Mr Abhishek Verma, learned counsel for the

petitioner and Mr Ajit Sharma, learned Deputy Advocate General

for the respondent/State.

5. Mr Deepak Kaushal, learned Senior Counsel for the

petitioner, submitted that the petitioner is innocent and he was

falsely implicated based on the statement made by the co-

accused Sunny, which is legally inadmissible. The police have

filed the charge sheet, and no fruitful purpose would be served by

detaining the petitioner in custody. Hence, he prayed that the

present petition be allowed and the petitioner be released on bail.

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6. Mr Ajit Sharma, learned Deputy Advocate General for

the respondent/State, submitted that the petitioner was found in

possession of a commercial quantity of Tramadol, and the

rigours of Section 37 of the NDPS Act apply to the present case.

The petitioner has failed to satisfy the twin conditions laid down

under Section 37 of the NDPS Act, and he is not entitled to bail.

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

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

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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

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

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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

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

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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:

(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)

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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 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. Hon’ble Supreme Court held in State of Rajasthan v.

Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC

261 that the normal rule is bail and not jail, except where the

gravity of the crime or the heinousness of the offence suggests

otherwise. It was observed at page 308:

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2. The basic rule may perhaps be tersely put as bail, not

jail, except where there are circumstances suggestive of

fleeing from justice or thwarting the course of justice or

creating other troubles in the shape of repeating offences

or intimidating witnesses and the like, by the petitioner

who seeks enlargement on bail from the Court. We do not

intend to be exhaustive but only illustrative.

3. It is true that the gravity of the offence involved is likely

to induce the petitioner to avoid the course of justice and

must weigh with us when considering the question of jail.

So also, the heinousness of the crime….”

10. The present petition has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

11. The status report mentions that the petitioner was

driving a motorcycle bearing registration No UP-11CR-4563, and

Sunny was travelling as a pillion rider. The police recovered 3120

capsules of Spasmore, which, as per the analysis report,

contained Tramadol Hydrochloride. The petitioner and Sunny

belonged to the same village, and they were apprehended at a

distance far from their native village. 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

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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,

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

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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

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, the petitioner was prima facie found in

possession of 3120 capsules of Spasmore containing Tramadol

Hydrochloride.

13. Mr. Ajit Sharma, learned Deputy Advocate General for

the respondent-State, submitted that the quantity of Tramadol

found in possession of the petitioner is commercial in nature and

the rigours of Section 37 of the NDPS Act apply to the present

case. This submission is not supported by any material on record.

The FIR and the status report are conspicuously silent regarding

the weight of the capsules, and there is nothing to show that the

quantity of Tramadol Hydrochloride recovered by the police was

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commercial. Hence, the submission that the petitioner was found

in possession of a commercial quantity of Tramadol

Hydrochloride cannot be accepted.

14. The status report mentions that 3120 capsules of

Spasmore were recovered. It is a huge quantity. No prescription

slip was produced by any person; therefore, there is nothing on

record to show that the capsules were meant for self-

consumption. This huge quantity of the capsules would disentitle

the petitioner from the concession of the bail, even though it is

not proved that this quantity was commercial. It was laid down

by this Court in Khushi Ram Gupta v. State of H.P., 2022 SCC OnLine

HP 3779, that the menace of drug addiction has seriously eroded

into the fabric of society, and the release of an accused on bail in

NDPS Act cases will send a negative signal to society. It was

observed:

“8. The menace of drug addiction, especially in

adolescents and students, has seriously eroded into the

fabric of society, putting the future generation as well as

the prospects of future nation-building into serious peril.

9. It is not a case where the investigating agency is

clueless in respect of evidence against the petitioner.

Though allegations against the petitioner are yet to be

proved in accordance with the law, it cannot be taken

singly as a factor to grant bail to the petitioner. Nothing

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has been placed on record on behalf of the petitioner to

divulge as to how and in what manner he came in contact

with the persons who were residents of the State of

Himachal Pradesh. Thus, there is sufficient prima facie

material to infer the implication of the petitioner in the

crime. In such circumstances, the release of the petitioner

on bail will send a negative signal in society, which will

definitely be detrimental to its interests.

10. The prima facie involvement of the petitioner in the

dangerous trade of contraband cannot be ignored merely

on account of the fact that he has no past criminal history.

It cannot be guaranteed that there will be re-indulgence

by the petitioner in similar activities, in case he is released

on bail.”

15. Similarly, it was held in Bunty Yadav v. State of H.P.,

2022 SCC OnLine HP 4996, that the bail cannot be claimed as a

matter of right even though the rigours of Section 37 of the NDPS

Act do not apply to a case. Each case has to be adjudged on its

own facts. It was observed:

“6. The quantity involved in the case is 89.89 grams of

heroin and 3.90 grams of MDMA. Such quantity may not

technically fall under the category of commercial quantity;

nevertheless, such quantity cannot be termed to be less by

any stretch of the imagination. The evident nature of

commercial transactions and dealing with the contraband

aggravates the situation for the petitioner. In a case where

Section 37 of the NDPS Act is not applicable, the bail

cannot be claimed as a matter of right. The fate depends

on the facts of each and every case.

7. The menace of drug addiction, especially in adolescents

and students, has seriously eroded into the fabric of

society, putting the future generation as well as the

prospects of future nation-building into serious peril.”

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16. It was laid down by the Hon’ble Supreme Court in

Union of India v Namdeo Ashruba Nakade SLP (Crl.) 9792/2025,

decided on 07.11.2025, that there is a concerning increase in drug

abuse amongst the youth. It was observed: -

8. This Court is of the view that the issue of substance

abuse has emerged as a global public health crisis in the

twenty-first century, affecting every country worldwide,

as drug trafficking and addiction have become pervasive.

The United Nations Office on Drugs and Crime (UNODC)

reported in its 2025 World Drug Report that “As at 2023,

some 316 million people worldwide had used drugs in the

past year, representing an increase over the past decade

that outpaces population growth, which indicates a higher

prevalence of drug use.”

9. In India, there has been a concerning increase in drug

abuse among the youth. Substance abuse not only affects

individuals, families, and communities but also

undermines various aspects of health, including physical,

social, political, and cultural foundations, and mental

well-being. (See: “Bhattacharya S, Menon GS, Garg S,

Grover A, Saleem SM, Kushwaha P. The lingering menace

of drug abuse among the Indian youth–it’s time for

action. Indian J Community Med 2025;50: S9-12,

published on 17th April, 2025”)

10. According to many news reports, India faces a clear

dilemma between tackling the narcotics crisis

systematically or sacrificing its most valuable resource,

i.e. its young people. The extent of menace of drug abuse

has also been highlighted by this Court in the case of

Ankush Vipan Kapoor v. National Investigation Agency,

(2025) 5 SCC 155, wherein this Court has observed as

under:

“9.1 The ills of drug abuse seem to be shadowing the

length and breadth of our country, with the Central

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and every State Government fighting against the

menace of substance abuse. The debilitating impact

of the drug trade and drug abuse is an immediate

and serious concern for India. As the globe grapples

with the menace of escalating substance use

disorders (“SUD”) and an ever-accessible drug

market, the consequences leave a generational Page

75 of 84 imprint on public health and even national

security. Article 47 of the Constitution makes it a

duty of the State to regard the raising of the level of

nutrition and the standard of living of its people and

the improvement of public health as among its

primary duties and in particular the State shall

endeavour to bring about prohibition of the

consumption except for medicinal purposes of

intoxicating drinks and of drugs which are injurious

to health. The State has a responsibility to address

the root causes of this predicament and develop

effective intervention strategies to ensure that

India’s younger population, which is particularly

vulnerable to substance abuse, is protected and

saved from such a menace. This is particularly

because substance abuse is linked to social problems

and can contribute to child maltreatment, spousal

violence, and even property crime in a family.”

17. Hence, the petitioner cannot be released on bail

merely because the rigours of Section 37 of the NDPS Act do not

apply to the present case.

18. In view of the above, the petitioner is not entitled to

bail. Hence, the present petition fails, and it is dismissed.

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19. The observation made herein before shall remain

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

bearing, whatsoever, on the merits of the case.

(Rakesh Kainthla)

Judge

7

th

April, 2026

(Chander)