2026:HHC:3322

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 2179 of 2025

Reserved on: 06.01.2026

Date of Decision: 23.01.2026.

______________________________________

Noop Ram @ Anup Ram ...Petitioner

Versus

State of Himachal Pradesh ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Vacation Judge.

Whether approved for reporting?

1

No

For the Petitioner : M/s Rakesh Chaudhary & Panku

Chaudhary, Advocates.

For the Respondent : Mr Lokender Kutlheria, Additional

Advocate General.

Rakesh Kainthla, Vacation Judge

The petitioner has filed the present petition seeking

regular bail in FIR No. 125 of 2023, dated 28.11.2023, registered at

Police Station Banjar, District Kullu, H.P, for the commission of

an offence punishable under Section 20 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (NDPS Act).

2. It has been asserted that the petitioner is innocent and

that he was falsely implicated. The investigation has been

1

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

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completed, and the charge sheet was filed before the Court on

23.02.2024. The matter was listed for recording the statements of

prosecution witnesses on 05.01.2026. The prosecution has only

examined four witnesses out of the ten witnesses cited by it. The

possibility of concluding the trial in the near future is very low.

The continued detention of the petitioner is violative of the

petitioner’s constitutional rights. The petitioner would abide by

the terms and conditions which 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 had set up a naka on 28.11.2023. They had

checked 5-6 vehicles. They saw one person carrying a backpack

coming towards the place of Naka at about 2:00 PM. He returned

after seeing the police. The police apprehended him. He could not

give any satisfactory answer for his returning. He identified

himself as Noop Ram @ Anup Ram (the present petitioner). The

police checked the carry bag and recovered 1 kg 28 grams of

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

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

was found to be an extract of cannabis and a sample of charas.

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The police filed a charge sheet against the petitioner on

31.01.2024. The police have cited 10 witnesses, out of whom four

have been examined. The matter was listed on 5/6.01.2026 for

recording the statements of the witnesses. Hence, the status

report.

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

Chaudhary, learned counsel for the petitioner and Mr Lokender

Kutlehria, learned Additional Advocate General for the

respondent/State.

5. Mr Rakesh Chaudhary, learned counsel for the

petitioner, submitted that the petitioner is innocent and he was

falsely implicated. The prosecution has failed to complete the

evidence despite the lapse of more than 2 years from the date of

the arrest of the petitioner. There is no likelihood of an early

conclusion of the trial. Hence, he prayed that the present petition

be allowed and the petitioner be released on bail. He relied upon

Nirmala vs. State of H.P 2022:HHC:4870, Hukam Ram vs State of H.P.

2022:HHC:10808, Rajiv Kumar vs. State of H.P. 2022:HHC:2126,

Mousam Deen vs. State of H.P. in Cr.MP(M) No. 766 of 2023 and

Osant vs. State of H.P. 2026:HHC:94 in support of his submission.

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2026:HHC:3322

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.

Hence, 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. Therefore,

he is not entitled to bail. There is no delay in the trial attributable

to the prosecution. 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 record carefully.

8. The parameters for granting bail were considered by

the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC

314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:

(i) Broad principles for the grant of bail

56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1

SCC 240: 1978 SCC (Cri) 115 , Krishna Iyer, J., while

elaborating on the content of Article 21 of the Constitution

of India in the context of personal liberty of a person under

trial, has laid down the key factors that should be

considered while granting bail, which are extracted as

under: (SCC p. 244, paras 7-9)

“7. It is thus obvious that the nature of the charge is the

vital factor, and the nature of the evidence is also

pertinent. The punishment to which the party may be

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liable, if convicted or a conviction is confirmed, also

bears upon the issue.

8. Another relevant factor is whether the course of justice

would be thwarted by him who seeks the benignant

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

[Patrick Devlin, “The Criminal Prosecution in England”

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

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

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

considering the likelihood of the applicant interfering with

witnesses for the prosecution or otherwise polluting the

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

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

is applying for bail to find whether he has a bad record,

particularly a record which suggests that he is likely to

commit serious offences while on bail. In regard to

habituals, it is part of criminological history that a

thoughtless bail order has enabled the bailee to exploit the

opportunity to inflict further crimes on the members of

society. Bail discretion, on the basis of evidence about the

criminal record of a defendant, is therefore not an exercise

in irrelevance.” (emphasis supplied)

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

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

aspects that the courts should keep in mind while dealing

with an application seeking bail. The same may be

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

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

basis of well-settled principles, having regard to the

circumstances of each case and not in an arbitrary manner.

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

nature of accusations, the nature of evidence in support

thereof, the severity of the punishment which conviction

will entail, the character, behaviour, means and standing of

the accused, circumstances which are peculiar to the

accused, reasonable possibility of securing the presence of

the accused at the trial, reasonable apprehension of the

witnesses being tampered with, the larger interests of the

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public or State and similar other considerations. It has also

to be kept in mind that for the purposes of granting the bail

the legislature has used the words “reasonable grounds for

believing” instead of “the evidence” which means the court

dealing with the grant of bail can only satisfy it (sic itself)

as to whether there is a genuine case against the accused

and that the prosecution will be able to produce prima facie

evidence in support of the charge.” (emphasis supplied)

58. This Court in Ram Govind Upadhyay v. Sudarshan Singh,

(2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through

Banerjee, J., emphasised that a court exercising discretion

in matters of bail has to undertake the same judiciously. In

highlighting that bail should not be granted as a matter of

course, bereft of cogent reasoning, this Court observed as

follows: (SCC p. 602, para 3)

“3. Grant of bail, though being a discretionary order, but,

however, calls for the exercise of such a discretion in a

judicious manner and not as a matter of course. An order

for bail bereft of any cogent reason cannot be sustained.

Needless to record, however, that the grant of bail is

dependent upon the contextual facts of the matter being

dealt with by the court and facts do always vary from case

to case. While the placement of the accused in society,

though it may be considered by itself, cannot be a guiding

factor in the matter of grant of bail, the same should always

be coupled with other circumstances warranting the grant

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

considerations for the grant of bail — the more heinous is

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

though, however, dependent on the factual matrix of the

matter.” (emphasis supplied)

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

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

established that a court considering a bail application

cannot undertake a detailed examination of evidence and

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

court is required to indicate the prima facie reasons

justifying the grant of bail.

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60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14

SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that

where a High Court has granted bail mechanically, the said

order would suffer from the vice of non-application of

mind, rendering it illegal. This Court held as under with

regard to the circumstances under which an order granting

bail may be set aside. In doing so, the factors which ought

to have guided the Court's decision to grant bail have also

been detailed as under: (SCC p. 499, para 9)

“9. … It is trite that this Court does not, normally, interfere

with an order passed by the High Court granting or

rejecting bail to the accused. However, it is equally

incumbent upon the High Court to exercise its discretion

judiciously, cautiously and strictly in compliance with the

basic principles laid down in a plethora of decisions of this

Court on the point. It is well settled that, among other

circumstances, the factors to be borne in mind while

considering an application for bail are:

(i) whether there is any prima facie or reasonable

ground to believe that the accused had committed the

offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of

conviction;

(iv) danger of the accused absconding or fleeing, if

released on bail;

(v) character, behaviour, means, position and standing

of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being

influenced; and

(viii) danger, of course, of justice being thwarted by

grant of bail.” (emphasis supplied)

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 :

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

parameters laid down by the Hon’ble Supreme Court.

10. The status report shows that the police apprehended

the petitioner with the carry bag and recovered 1 kg 28 grams of

charas, which is a commercial quantity. Therefore, the rigours of

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

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

involving a commercial quantity, the Court should be satisfied

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

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

follows:

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

(1) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be

cognisable.

(b) no person accused of an offence punishable for

offences under section 19, section 24, or section 27A

and also for offences involving commercial

quantity, shall be released on bail or his own bond

unless–

(i) the Public Prosecutor has been given an

opportunity to oppose the application for such

release, and

(ii) where the Public Prosecutor opposes the

application, the court is satisfied that there

are reasonable grounds for believing that he is

not guilty of such an offence and that he is not

likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations

under the Code of Criminal Procedure, 1973 (2 of 1974) or

any other law for the time being in force, on granting of

bail.”

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

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

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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.

(1) The court must be satisfied that there are

reasonable grounds for believing that the

person is not guilty of such an offence;

(2) that person is not likely to commit any offence

while on bail.”

13. This position was reiterated in State of Kerala Versus

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

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

followed while considering the application for bail moved

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

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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

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

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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 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

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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.”

14. A similar view was taken in Union of India v. Mohd.

Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC

OnLine SC 1237, wherein it was observed at page 110:

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

of bail for offences punishable under Sections 19, 24 or 27-

A and also for offences involving a commercial quantity

are:

(i) The Prosecutor must be given an opportunity to

oppose the application for bail; and

(ii) There must exist “reasonable grounds to

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

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

offence while on bail.

22. The standard prescribed for the grant of bail is

“reasonable ground to believe” that the person is not guilty

of the offence. Interpreting the standard of “reasonable

grounds to believe”, a two-judge Bench of this Court in

Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari,

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(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] ]

***

10. The word “reasonable” signifies “in accordance

with reason”. In the ultimate analysis, it is a

question of fact whether a particular act is

reasonable or not, which depends on the

circumstances in a given situation. (See Municipal

Corpn. of Greater Mumbai v. Kamla Mills Ltd.

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[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.”

15. It was held in Union of India v. Ajay Kumar Singh, 2023

SCC OnLine SC 346, that bail cannot be granted without complying

with the requirement of Section 37 of the NDPS Act. It was

observed:

4. This apart, it is noticed that the High Court, in passing

the impugned order of bail, had lost sight of Section 37 of

the NDPS Act, which, inter alia, provides that no person

accused of an offence involving commercial quantity shall

be released on bail unless the twin conditions laid down

therein are satisfied, namely, (i) the public prosecutor has

been given an opportunity to oppose the bail application;

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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 involving

commercial quantity, shall be released on bail or

on his own bond unless-

(i) the Public Prosecutor has been given an

opportunity to oppose the application for such

release, and

(ii) where the Public Prosecutor opposes the

application, the court is satisfied that there are

reasonable grounds for believing that he is not

guilty of such offence and that he is not likely

to commit any offence while on bail.”

16. In view of the above provisions, it is implicit that no

person accused of an offence involving trade in a

commercial quantity of narcotics is liable to be released on

bail unless the court is satisfied that there are reasonable

grounds for believing that he is not guilty of such an

offence and that he is not likely to commit any offence

while on bail.

16. It was held in State of Meghalaya v. Lalrintluanga Sailo,

2024 SCC OnLine SC 1751, that the grant of bail without

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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 themselves read thus:—

“An act to consolidate and amend the law relating to

narcotic drugs, to make stringent provisions for the control

and regulation of operations relating to narcotic drugs and

psychotropic substances, to provide for the forfeiture of

property derived from, or used in, illicit traffic in narcotic

drugs and psychotropic substances, to implement the

provisions of the International Convention on Narcotic

Drugs and Psychotropic Substances and for matters

connected therewith.”

In the decision in Collector of Customs, New Delhi v.

Ahmadalieva Nodira (2004) 3 SCC 549 , the three-judge

bench of this Court considered the provisions under

Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with

regard to the expression “reasonable grounds” used

therein. This Court held that it means something more

than the prima facie grounds and that it contemplates

substantial and probable causes for believing that the

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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 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.”

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17. In the present case, the prosecution has collected

sufficient material to prima facie connect the petitioner with the

commission of the crime. There is nothing on record to show that

the petitioner would not indulge in the commission of an offence

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

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

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

the trial, and the petitioner is entitled to bail on this

consideration. This submission cannot be accepted. The certified

copies of the order sheet show that the charges were framed

against the petitioner on 03.05.2024. The examination-in-chief

of the witnesses was recorded on 20.07.2024, and their cross-

examination was deferred on the request of learned counsel for

the defence. The statements of two witnesses were recorded on

05.12.2024. One witness was given up on 09.01.2025. The

statements of two witnesses were recorded on 05.01.2026. The

remaining witnesses have been summoned for 21.01.2026.

19. Thus, the record shows that the prosecution has

examined six witnesses and has given up one witness. The

remaining three witnesses have been summoned for 21.01.2026.

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The examination of two witnesses could not be completed

because of the request made by the petitioner. Hence, the

submission that there is a delay in the progress of the trial cannot

be accepted.

20. 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

21

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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).”

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 allega-

tions are serious inasmuch as not only is the recovery

much in excess of the commercial quantity, but the Re -

spondent-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 Re-

spondent-accused is involved in drug trafficking in an or-

ganised 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 had not satisfied the

requirement of Section 37 of the NDPS Act.

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23. In Nirmala (supra), Hukam Ram (supra), Rajiv Kumar

(supra), and Mousam Deen (supra), the bail was granted on

special consideration. In Osant (supra) the bail was granted

because of the fact that the Hon’ble Supreme Court had granted

bail to the co-accused. Therefore, these judgments will not assist

the petitioner.

24. No other point was urged.

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

same is dismissed.

26. 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)

Vacation Judge

23

rd

January, 2026.

(Nikita)