2026:HHC:36664

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 1390 of 2026

Reserved on: 24.08.2026

Date of Decision: 27. 08.2026

Govind Ram …. Petitioner

Versus

State of HP …. Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No.

For the Petitioner : Mr Ashok Kumar Tyagi,

Advocate.

For the Respondent/State : Mr Ajit Sharma, Deputy

Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition seeking

regular bail in F.I.R. No.140 of 2025, dated 21.06.2025, 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 (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, as per the prosecution, the

police received secret information on 20.06.2025, at about 06.10

p.m., that Munshi Ram, Geeta Ram, Narender Kumar and Govind

Ram (present petitioner) were selling capsules. Munshi Ram and

Geeta Ram were conducting a recce on a motorcycle bearing

registration No. HP-17G-7947. Narender Kumar and Govind Ram

were bringing a consignment of the capsules on the motorcycle

bearing registration No. HP-17G-6252 from Uttarakhand to

Paonta Sahib. The information was credible . The police

completed the formalities and set up a nakka. The police

signalled the motorcyclists bearing registration No. HP-17G-

6252 and HP-17G-7947 to stop. The motorcycle bearing

registration No. HP-17G-6252 was intercepted on the spot, but

the motorcycle bearing registration No. HP-17G- 7947 fled away

from the spot. The motorcyclists revealed their names as

Narinder Kumar and Govind Ram (the present petitioner). The

police searched the motorcycle riders in the presence of the

independent witnesses and recovered one white polythene

packet containing 2386 capsules of Tramadol weighing 1.374

kilograms and 596 tablets of Alprazolam weighing 0.112 grams.

The police arrested the petitioner and the co-accused. The

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allegations against the petitioner are false. No recovery was

effected from the petitioner, but the recovery was made from the

co-accused. There is no material to connect the petitioner to the

commission of the crime. The co-accused Muntajir was granted

bail in CrMP(M) No. 1683 of 2025, on 12.08.2025. Similarly, co-

accused Geeta Ram was granted bail by this Court in CrMP(M)

No.885 of 2026 on 17.06.2026. The police have completed the

investigation. The charge sheet has been filed before the Court.

The prosecution has cited 31 witnesses, and the trial is likely to

take a long time. 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 party received secret information on

20.06.2025 that Munshi Ram, Geeta Ram, Narinder Kumar and

Govind Ram (the present petitioner) were dealing in intoxicating

capsules. They had gone to Uttarakhand/Uttar Pradesh to

purchase the capsules. A huge quantity of capsules could be

recovered from their search. The information was credible. It was

reduced to writing and sent to the office of the Sub Divisional

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Police Officer (SDPO), Paonta Sahib. The police associated

Narinder Kuma r and Ranjan. Two motorcycles bearing

registration No. HP-17G-7947 and HP-17G-6252 came from

Kulhal. The motorcycle bearing registration No. HP-17G-7947

sped towards Paonta, whereas the motorcycle bearing

registration No. HP-17G-6252 was stopped. The driver revealed

his name as Narinder Kumar, and the pillion rider revealed his

name as Govind Ram (present petitioner). The police searched

the bag being carried by Narinder Kumar and found a polythene

packet containing 2386 anti-spasmodic capsules and 596 tablets

of Alprazolam. The total weight of the capsules was found to be

1.374 kg, and the total weight of Alprazolam tablets was found to

be 0.112 grams. Documents were demanded for possession of the

capsules and the tablets, but no documents were produced. The

police seized the capsules and the tablets. The motorcycle

bearing registration No. HP-17G-7947 was detained by the police

of the Police Station, Puruwala. Munshi Ram and Geeta Ram were

riding the motorcycle. They revealed during the interrogation

that they had purchased the capsules and the tablets for

₹16,000/-. Narinder Kumar made a disclosure statement under

Section 23(a) of Bharatiya Sakshya Adhiniyam (BSA) that he

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could point out the place from where the capsules and tablets

were purchased by him from Muntzir Ahmad. He led the police to

the place. He also identified Muntzir Ahmed, and the police

arrested him. The capsules and tablets were sent to the Forensic

Science Laboratory (FSL), and as per the report of analysis, the

capsules were samples of Tram adol, and the tablets were

samples of Alprazolam. The accused were found in touch with

each other. The prosecution has cited 31 witnesses, out of whom

two have been examined. The matter is listed for recording the

statements of the witnesses on 9

th

and 10

th

September, 2026,

before the learned Sessions Judge, Nahan at Sirmour, H.P. Hence,

the status report.

4. I have heard Mr Ashok Kumar Tyagi, learned counsel

for the petitioner and Mr Ajit Sharma, learned Deputy Advocate

General, for the respondent/State.

5. Mr Ashok Kumar Tyagi, learned counsel for the

petitioner, submitted that the petitioner is innocent and he was

falsely implicated. No recovery was effected from him. The Court

has already enlarged the co-accused on bail, and the petitioner is

entitled to bail on the principle of parity. No recovery was made

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from the petitioner, and the petitioner is being detained in

custody based on suspicion. The police have filed the charge

sheet, and the completion of the trial is likely to take some time.

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. He relied upon a judgment

of this Court in Amar Nath vs. State of H.P. 2025:HHC: 22851 in

support of his submission.

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 the narcotics and the

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

The petitioner has not satisfied the twin conditions laid down

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:

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(i) Broad principles for the grant of bail

56. In Gudikantis 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 ben ignant

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, based on evidence about the

criminal record of a defendant, is therefore not an exercise

in irrelevance.” (emphasis supplied)

57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4

SCC 280: 2001 SCC (Cri) 674, this Court highlighted various

aspects that the courts should keep in mind while dealing

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with an application seeking bail. The same may be

extracted as follows: (SCC pp. 284-85, para 8)

“8. The jurisdiction to grant bail has to be exercised on the

basis of well-settled principles, having regard to the

circumstances of each case and not in an arbitrary manner.

While granting the bail, the court has to keep in mind the

nature of accusations, the nature of evidence in support

thereof, the severity of the punishment which conviction

will entail, the character, behaviour, means and standing

of the 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

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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:

(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;

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(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 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

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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:

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 shows that the police stopped a

motorcycle bearing registration No. HP-17G-6252. The riders of

the motorcycle revealed their name as Narend er Kumar and

Govind Ram (the present petitioner). Narender Kumar had a

backpack, which was searched, and the police recovered 2386

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capsules of Tramadol and 596 tablets of Alprazolam. These were

sent to the FSL and were confirmed to be Tramadol and

Alprazolam after analysis. 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,

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

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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

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 has to be treated as being in

possession, and the submission that the petitioner was not in

possession cannot be accepted.

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13. In the present matter, the police had recovered 2386

capsules weighing 1.374 kilograms and 596 tablets weighing

0.112 grams. Therefore, the petitioner was prima facie found in

possession of a commercial quantity of Tramadol and the rigours

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

14. Section 37 of the NDPS Act provides that in an offence

involving a commercial quantity, the Court should be satisfied

that the accused is not guilty of the commission of an offence and

is not likely to commit any offence while on bail. It reads as

follows:

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

(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974)—

(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

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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.”

15. This Section was interpreted by the Hon'ble Supreme

Court in Union of India Versus Niyazuddin& Another (2018) 13 SCC

738, and it was held that in the absence of the satisfaction that

the accused is not guilty of an offence and he is not likely to

commit an offence while on bail, he cannot be released. It was

observed:

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

with regard to the grant of bail in respect of certain

offences enumerated under the said Section. They are:

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

punishable under Section 19,

(2) Under Section 24,

(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.

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(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 the person is not likely to commit any

offence while on bail.”

16. 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 th e

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

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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 recent years.

Therefore, in order to effectively control and

eradicate this proliferating and booming

devastating menace, caus ing deleterious

effects and a deadly impact on society as a

whole, Parliament, in its wisdom, has made

effective provisions by introducing the NDPS

Act 81 of 1985 specifying mandatory

minimum imprisonment and fine.

8. To check the menace of dangerous drug s

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 t he 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."

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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

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.”

17. 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

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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 grounds 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

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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 analys is, it is a

question of fact whether a particular act is

reasonable or not, which depends on the

circumstances in a given situation. (See Municipal

Corpn. of Greater Mumbai v. Kamla Mills Ltd.

[Municipal Corpn. of Greater Mumbai v. Kamla Mills

Ltd. (2003) 6 SCC 315]

11. The court, while considering the application for

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

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

the limited purpose essentially confined to the

question of releasing the accused on bail that the

court is called 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

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trafficking in the country, stringent parameters for the

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

18. 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 wa s

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. -

(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 in volving

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

22

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(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 involv ing 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.

19. 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 for 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 themselves read thus:—

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2026:HHC:36664

“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 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 alt ernative. 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

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2026:HHC:36664

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.”

20. 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

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

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

21. In Amar Nath (supra), the recovery was made from the

taxi and the Court held that the driver of the taxi could not be

held to be in possession. In the present case, the recovery was not

effected from the commercial vehicle, but from a private vehicle.

The petitioner and the co-accused are residents of the same

village as per the status report. They were travelling together and

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2026:HHC:36664

have to be treated as being in possession of the capsules and the

tablets as per the judgment of the Hon’ble Supreme Court in

Madan Lal (supra). Therefore, the cited judgment does not apply

to the present case.

22. It was submitted that 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

26

2026:HHC:36664

bail to the accused involved in the offences under the said

Act.”

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

of the trial, and the petitioner is entitled to bail because of the

delay. This submission will not help the petitioner. 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 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

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2026:HHC:36664

requirements noticed above, in addition to the ordinary

tests under the Code of Criminal Procedure.

19. In the present case, the High Court has not undertaken

the analysis of those twin requirements with reference to

the material placed by the prosecution. The orders dated

22.01.2025 and 12.03.2025 do not advert to the allegation

regarding the respondent’s prior involvement in a seizure

of narcotic drugs and psychotropic substances only days

prior to the seizure forming the subject matter of the

present complaint, nor do they engage with the

prosecution’s assertion as to the respondent’s role in

arranging, importing, clearing and supervising the

consignments. The omission to consider these factors

bears directly upon the statutory satisfaction required by

Section 37(1)(b).”

24. 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 since 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.”

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

ground of delay alone when the petitioner had not satisfied the

requirement of Section 37 of the NDPS Act.

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26. No other point was urged.

27. In view of the above, the present petition fails, and it

is dismissed.

28. 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)

Judge

27

th

August, 2026

(Ravinder)