2026:HHC:10814

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 2418 of 2025

Reserved on: 24.3.2026

Date of Decision: 08.4.2026.

Dheeraj Kumar …. Petitioner

Versus

State of HP …. Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No.

For the Petitioner : Mr Mukesh Sharma, Advocate.

For the Respondent/State : Mr Lokender Kutlehria,

Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail in FIR No. 257 of 2024, dated 26.12.2024,

registered at Police Station Sadar, District Solan, H.P., for the

commission of an offence punishable under section 20 of the

Narcotics Drugs and Psychotropic Substances (NDPS) Act.

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

police received secret information on 26.12.2024, that one

Neeraj, resident of Kleen, District Solan, HP, had contraband in

1

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

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his home. The police searched the house and recovered 1212

grams of charas from one of the rooms. The petitioner was found

at the spot, and he was apprehended with the allegations of being

in conscious possession of the charas. The investigation is

complete, and the charge sheet has been filed before the Court.

No fruitful purpose would be served by the continued

incarceration of the petitioner. The trial is likely to take some

time, and pre-trial detention of the petitioner would amount to

punishment before conviction, which is impermissible under the

law. The petitioner had filed a bail petition before the learned

Additional Sessions Judge-II, Solan, HP (Camp at Arki), which

was dismissed on 21.02.2025. 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 police received secret information on 26.12.2024 at

about 6 PM during patrolling that Dheeraj Kumar (the

petitioner), a resident of Kleen, was selling/purchasing charas.

The information was credible, and the delay in procuring a

search warrant would have destroyed the charas. Hence, it was

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reduced to writing and was sent to the Supervisory officer. The

police joined Neeraj Kumar and Anshul Minhas and went to the

petitioner’s room. The petitioner was present in the room. The

police searched the room after completing the formalities and

recovered a backpack containing 1.212 kilograms of charas from

the bed. The police seized the charas and arrested the petitioner.

The charas was sent to the FSL. The chargesheet was filed before

the learned Trial Court, and the matter was listed before the

learned Trial Court for recording the statements of the

prosecution’s witnesses on 17.11.2025. Hence, the status report.

4. I have heard Mr Mukesh Sharma, learned counsel for

the petitioner and Mr Lokender Kutlehria, learned Additional

Advocate General for the respondent/State.

5. Mr Mukesh Sharama, learned counsel for the

petitioner, submitted that the petitioner is innocent and he was

falsely implicated. The petitioner was not found in conscious

possession of the charas. The police have filed the charge-sheet,

and no fruitful purpose would be served by detaining him in

custody. The petitioner would abide by the terms and conditions

that the Court may impose. There is a delay in the progress of the

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trial, and the petitioner’s right to a speedy trial is being violated.

Hence, he prayed that the present petition be allowed and the

petitioner be released on bail.

6. Mr Lokender Kutlehria, learned Additional Advocate

General for the respondent State, submitted that the petitioner

was found in possession of a commercial quantity of charas and

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

case. 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. 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.

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)

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“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

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

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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

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

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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:

(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

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(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 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

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gravity of the crime or the heinousness of the offence suggests

otherwise. It was observed at page 308:

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

jail, except where there are circumstances suggestive 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 clearly mentions that the petitioner

was present in the house when the police reached with the

independent witnesses. The police recovered the carry bag

containing 1212 grams of charas from the room. The petitioner

was the only person present in the house and had to be treated as

in possession. Therefore, the plea taken by him that he was not in

possession of the charas cannot be accepted.

12. The Central Government has notified that one

kilogram of charas is the commercial quantity; therefore, the

petitioner was found in possession of the commercial quantity of

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charas, and the rigours of section 37 of the NDPS Act apply to the

present case.

13. Section 37 of the ND&PS 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.

Section 37 of the NDPS Act reads as follows:

“37. Offences to be cognisable and non-bailable. – (1)

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974)—

(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,

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1973 (2 of 1974) or any other law for the time being

in force, on granting of bail.”

14. 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 on bail. It

was observed:

“7. Section 37 of the NDPS Act contains special provisions

with regard to the grant of bail in respect of certain

offences enumerated under the said Section. They are:

(1) In the case of a person accused of an offence

punishable under Section 19,

(2) Under Section 24,

(3) Under Section 27A and

(4) offences involving 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.”

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15. This position was reiterated in State of Kerala Versus

Rajesh, AIR 2020 SC 721, wherein it was held:

“19. This Court has laid down broad parameters to be

followed while considering the application for bail moved

by the accused involved in offences under the NDPS Act. In

Union of India vs Ram Samujh and Ors., (1999) 9 SCC 429, it

has been elaborated as under: -

"7. It is to be borne in mind that the aforesaid

legislative mandate is required to be adhered to and

followed. It should be borne in mind that in a murder

case, the accused commits the murder of one or two

persons, while those persons who are dealing in

narcotic drugs are instrumental in causing death or

in inflicting death-blow to a number of innocent

young victims, who are vulnerable; it causes

deleterious effects and a deadly impact on the

society; they are a 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

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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,

(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 twin

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conditions are satisfied. The first condition is that the

prosecution must be given an opportunity to oppose the

application, and the second is that the Court must be

satisfied that there are reasonable grounds for believing

that he is not guilty of such an offence. If either of these

two conditions is not satisfied, the ban for granting bail

operates.

21. The expression "reasonable grounds" means

something more than prima facie grounds. It

contemplates substantial probable causes for believing

that the accused is not guilty of the alleged offence. The

reasonable belief contemplated in the provision requires

the existence of such facts and circumstances as are

sufficient in themselves to justify satisfaction that the

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

hand, the High Court seems to have completely overlooked

the underlying object of Section 37 that, in addition to the

limitations provided under the CrPC, or 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.”

16. 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.

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22. The standard prescribed for the grant of bail is

“reasonable ground to believe” that the person is not

guilty of the offence. Interpreting the standard of

“reasonable grounds to believe”, a two-judge Bench of

this Court in Shiv Shanker Kesari [Union of India v. Shiv

Shanker Kesari, (2007) 7 SCC 798: (2007) 3 SCC (Cri) 505],

held that : (SCC pp. 801-02, paras 7-8 & 10-11)

“7. The expression used in Section 37(1)(b)(ii) is

“reasonable grounds”. The expression means

something more than prima facie grounds. It connotes

substantial probable causes for believing that the

accused is not guilty of the offence charged, and this

reasonable belief contemplated, in turn, points to the

existence of such facts and circumstances as are

sufficient in themselves to 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] ]

***

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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 depends on the circumstances in a

given situation. (See Municipal Corpn. of Greater

Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of

Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]

11. The court, while considering the application for

bail with reference to Section 37 of the Act, is not

called upon to record a finding of not guilty. It is for

the limited purpose essentially confined to the

question of releasing the accused on bail that the

court is called 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.”

17. 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

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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.-

(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 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 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.

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18. 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 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 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 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

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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 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 for 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

20

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granting bail to an accused under the NDPS Act, cannot be

avoided while passing orders on such applications.”

19. In the present case, the prosecution has collected

sufficient material to connect the petitioner with the

commission of a crime. Hence, it cannot be said that there is no

reasonable ground to connect him with the commission of a

crime. There is nothing to show that the petitioner is not likely

to commit the offence in case of release on bail. Therefore, he

has failed to satisfy the twin conditions laid down under Section

37 of the ND&PS Act, and he cannot be held entitled to bail.

20. It was submitted that there is a delay in the progress

of the trial, and the petitioner is entitled to bail. This submission

cannot be accepted. The petitioner has not filed the copies of the

order sheet to demonstrate the delay. The petitioner was prima

facie found in possession of a commercial quantity of charas,

and he is not entitled to bail without satisfying the twin

conditions laid down under Section 37 of the NDPS Act. It was

laid down by the Hon’ble Supreme Court in Union of India vs.

Vijin K. Varghese 2025:INSC:1316 that bail cannot be granted on

the ground of prolonged incarceration without satisfying the

21

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twin conditions laid down under Section 37 of the NDPS Act. It

was observed: -

“17. The High Court then, on the strength of those

premises, recorded a finding that there exist reasonable

grounds to believe that the applicant is not guilty of the

alleged offence, treating prolonged incarceration and

likely delay as the justification for bail. Such a finding is

not a casual observation. It is the statutory threshold

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 the

appreciation of evidence which would be in the domain of

the trial court at first instance.

18. This Court ordinarily shows deference to the discretion

exercised by the High Court while considering the grant of

bail. However, offences involving a commercial 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

22

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bears directly upon the statutory satisfaction required by

Section 37(1)(b).”

21. A similar view was taken in Union of India v Namdeo

Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025,

wherein it was observed:

“11. In the present case, this Court finds that though the

Respondent-accused was in custody for one year, four

months, and charges have not been framed, yet the

allegations are serious inasmuch as not only is the

recovery much in excess of the commercial quantity, but

the Respondent-accused allegedly got the cavities

ingeniously fabricated below the trailer to conceal the

contraband.

12. Prima facie, this Court is of the opinion that the

Respondent-accused is involved in drug trafficking in an

organised manner. Consequently, no case for dispensing

with the mandatory requirement of Section 37 of the NDPS

Act is made out in the present matter.”

22. Therefore, it is impermissible to grant bail on the

ground of delay alone when the petitioner has not satisfied the

requirement of Section 37 of the NDPS Act.

23. It was submitted that the independent witnesses have

not supported the prosecution's case, and there are various

contradictions in the statements of the witnesses; hence, the

petitioner is entitled to bail. This submission will not help the

petitioner. It was laid down by the Delhi High Court in Dineet v.

State (NCT of Delhi), 2025 SCC OnLine Del 8603, that the accused

23

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cannot be released on bail because independent witnesses have

turned hostile. It was observed:

“17. Addressing Mr Mahajan's submissions, it is pertinent

to note that nearly the entirety of the petitioner's case

rests upon the assumption that this Court may enter into

witness testimonies and evidence to determine

contradictions and the hostility of witnesses at the stage

of bail.

18. However, it is trite that the same is not within the

power of this Court at the stage of bail, as laid down

in Satish Jaggi v. State of Chhattisgarh (2007) 11 SCC

195 : (2008) 1 SCC (Cri) 660, paragraphs 11 and 12 of which

merit reproduction:

“11. On the aforesaid reasoning, the learned Chief

Justice thought it fit to grant bail. Mr. A.K. Ganguli,

learned Senior Counsel appearing on behalf of the

appellant complainant, Mr. Amarendra Sharan, learned

ASG appearing on behalf of CBI and Mr. Rajiv Dutta,

learned Senior Counsel appearing on behalf of the State

of Chhattisgarh strenuously contended that having

regard to the observations and findings of the learned

Chief Justice as recorded above, it clearly shows that

the learned Chief Justice while granting bail to the

accused virtually decided the case on merit which

amounts to acquitting the accused of the criminal

charge levelled against him without trial. Per contra,

Mr Vivek Tankha, learned Senior Counsel, contended

that now the evidence is closed, so there is no question

of the accused tampering with the prosecution

witnesses or fleeing from justice. He further contended

that now the arguments in the case have finally started,

and the arguments of the prosecution are over, and

only the defence is to give its reply. He, accordingly,

contended that the bail granted by the learned Chief

Justice need not be disturbed.

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12. Normally, if the offence is non-bailable, bail can

also be granted if the facts and circumstances so

demand. We have already observed that in granting bail

in a non-bailable offence, the primary consideration is

the gravity and the nature of the offence. A reading of

the order of the learned Chief Justice shows that the

nature and the gravity of the offence and its impact on

the democratic fabric of the society were not at all

considered. We are more concerned with the

observations and findings recorded by the learned

Chief Justice on the credibility and the evidential value

of the witnesses at the stage of granting bail. By

making such observations and findings, the learned

Chief Justice has virtually acquitted the accused of all

the criminal charges levelled against him even before

the trial. The trial is in progress, and if such findings

are allowed to stand, it would seriously prejudice the

prosecution's case. At the stage of granting bail, the

court can only go into the question of the prima facie

case established for granting bail. It cannot go into the

question of the credibility and reliability of the

witnesses put up by the prosecution. The question of

credibility and reliability of prosecution witnesses can

only be tested during the trial.”

19. By virtue of the aforementioned paragraphs from the

Hon'ble Supreme Court's decision in  Satish Jaggi, it is

evinced that this Court, at the stage of Bail, cannot look

into the allegations of PW2 being a witness who has

turned hostile, nor apply its mind to alleged

contradictions in his statement under Section  161 of

the CrPC when compared with his testimony in Court, as

the same would amount to appreciation of the evidentiary

value of his statement and testimony, and this is an

exercise that is only to be conducted during the course of

trial.

20. The same has been relied upon by the Hon'ble

Supreme Court in the judgment of State of Karnataka v. Sri

Darshan 2025 SCC OnLine SC 1702, with the following

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2026:HHC:10814

paragraphs of this decision reproduced for ready

reference:

“20.2.5. Further, such an approach of the High Court is

contrary to the judicial precedents of this court,

including Satish Jaggi v. State of Chhattisgarh (supra),

Kanwar Singh Meena v. State of Rajasthan

4

, wherein, it

was held that courts, while considering bail, should not

assess the credibility of witnesses, as this function squarely

lies within the domain of the trial Court. Thus, the

impugned order of the High Court violates this principle by

commenting on the delay in the witness statements and

imputing a lack of credibility at this stage” (emphasis

supplied)

*****

“20.3.6. In the present case, the High Court also

proceeded to analyse and discount the credibility of

certain prosecution witnesses and forensic material. It

observed contradictions in the eyewitness statements

concerning the overt acts of the accused (para 26). It

expressed doubts about the prosecution's explanation

for the delay in recording the statements of CW. 76 and

CW. 91 (para 27). It questioned the timing of the

doctor's supplementary opinion and weighed its

evidentiary worth (para 31). As already pointed out, the

credibility or reliability of witnesses is a matter for the trial

Court to determine after full-fledged cross-examination. It

is a trite law that statements recorded under section 161 Cr.

P.C. are not substantive, and their evidentiary value can

only be determined after cross-examination during trial.

Any opinion rendered at the bail stage risks prejudging the

outcome of the trial and must be avoided. Thus, the court's

assessment of these aspects amounts to a premature

appreciation of the probative value of prosecution

evidence.” (emphasis supplied)

*****

“24. On a cumulative analysis, it is evident that the

order of the High Court suffers from serious legal

26

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infirmities. The order fails to record any special or

cogent reasons for granting bail in a case involving

charges under Sections 302, 120B, and 34 IPC. Instead,

it reflects a mechanical exercise of discretion, marked

by significant omissions of legally relevant

facts. Moreover, the High Court undertook an extensive

examination of witness statements at the pre-trial stage,

highlighting alleged contradictions and delays - issues

that are inherently matters for the trial Court to assess

through cross-examination. The trial Court alone is the

appropriate forum to evaluate the credibility and reliability

of witnesses. Granting bail in such a serious case,

without adequate consideration of the nature and

gravity of the offence, the accused's role, and the

tangible risk of interference with the trial, amounts to a

perverse and wholly unwarranted exercise of

discretion. The well-founded allegations of witness

intimidation, coupled with compelling forensic and

circumstantial evidence, further reinforce the necessity

for cancellation of bail. Consequently, the liberty

granted under the impugned order poses a real and

imminent threat to the fair administration of justice

and risks derailing the trial process. In light of these

circumstances, this Court is satisfied that the present

case calls for the exercise of its extraordinary

jurisdiction under Section 439(2) Cr. P.C.” (emphasis

supplied)

21. Drawing inspiration from the judgment in Darshan, the

hostility of a witness cannot be interpreted as an

automatic declaration of the prosecution's case as

unconvincing, and thereby, in essence, result in the

conduction of a mini-trial at the stage of bail and return

findings upon the  ex-facie merit of the accused's

innocence/guilt.

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

Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in

27

2026:HHC:10814

serious offences Trial Court or the High Court should not

entertain the bail application of the accused after the

commencement of the trial and grant bail because of some

discrepancy in the testimony. It was observed: -

“14. Ordinarily, in serious offences like rape, murder,

dacoity, etc., once the trial commences and the

prosecution starts examining its witnesses, the Court, be

it the Trial Court or the High Court, should be loath to

entertain the bail application of the Accused.

15. Over a period of time, we have noticed two things, i.e.,

(i) either bail is granted after the charge is framed and just

before the victim is to be examined by the prosecution

before the trial court, or (ii) bail is granted once the

recording of the oral evidence of the victim is complete by

looking into some discrepancies here or there in the

deposition and thereby testing the credibility of the

victim.

16. We are of the view that the aforesaid is not a correct

practice that the Courts below should adopt. Once the trial

commences, it should be allowed to reach its conclusion,

which may either result in the conviction of the Accused or

the acquittal of the Accused. The moment the High Court

exercises its discretion in favour of the Accused and orders

the release of the Accused on bail by looking into the

deposition of the victim, it will have its own impact on the

pending trial when it comes to appreciating the oral

evidence of the victim. It is only if the trial gets unduly

delayed and that, too, for no fault on the part of the

Accused, the Court may be justified in ordering his release

on bail on the ground that the right of the Accused to have

a speedy trial has been infringed.”

25. Similarly, it was held by this Court in Suraj Singh v.

State of H.P., 2022 SCC OnLine HP 268 that the Court exercising

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bail jurisdiction cannot appreciate the contradictions in the

evidence. It was observed:

10. Petitioner has placed reliance on the statements of

witnesses already recorded by the learned Special Judge, in

support of his argument to the effect that, from perusal of

these statements, reasonable grounds can be entertained

for concluding prima facie innocence of the petitioner.

The arguments raised on behalf of the petitioner deserve

to be rejected for the reason that this Court, while dealing

with the bail application, will not appreciate the evidence

being recorded during the trial. Undisputedly, only some

of the witnesses out of the entire list of witnesses relied

upon by the prosecution have been examined. In these

circumstances, it is not prudent to form any opinion as to

the innocence or guilt of the petitioner on the basis of such

partial evidence.

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

Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795:

(2012) 3 SCC (Cri) 1062: 2012 SCC OnLine SC 704 that the scope of

the bail application is limited and the Court cannot appreciate

the evidence while deciding the bail application. It was observed

at page 799:

“10…. Moreover, while considering the bail application,

the scope for the appreciation of evidence and other

material on record is limited. The court is not expected to

indulge in critical analysis of the evidence on record…”

29

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27. Therefore, the petitioner cannot be released on bail

because independent witnesses have not supported the

prosecution’s case.

28. No other point was urged.

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

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

30. 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

8

th

April, 2026

(Chander)