Himachal Pradesh High Court
Reserved On: 02.04.2025 vs State Of Himachal Pradesh on 7 April, 2025
2025:HHC:9297
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 284 of 2025
Reserved on: 02.04.2025
Date of Decision: 07.04.2025.
Sanju ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Ajay Thakur, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail. It has been asserted that the petitioner
was arrested for the commission of offences punishable under
Sections 20 and 25 of the Narcotic Drugs and Psychotropic
Substances Act (hereinafter referred to as ‘the ND&PS Act‘), vide
FIR No. 15 of 2023, dated 3.3.2023, registered at Police Station
Sainj, District Kullu, H.P. As per the prosecution case, the
petitioner was found in possession of charas weighing 2.603
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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kilograms. The police have cited 26 witnesses, however, the
statements of only four witnesses have been recorded. One
independent witness, Tajender, has turned hostile. The
petitioner has been behind the bars since 3.3.2023. The
petitioner is innocent and he was falsely implicated. He would
abide by the terms and conditions, which the Court may
impose. Hence, the petition.
2. The petition is opposed by filing a status report
asserting that the police party had set up a Naka near Dhaman
bridge on 2.3.2023 at 9.45 PM. They stopped the vehicle
bearing registration No. HP-01K-7535 at 10.15 PM. The driver
identified himself as Sanju (the present petitioner). He tried to
move a bag with his feet. The police became suspicious and
searched the vehicle in the presence of two independent
witnesses. The police recovered 2.603 kilograms of charas
during the search. As per the report of analysis, the exhibit was
found to be charas having 30.14% w/w resin in it. Out of 26
prosecution witnesses, the statements of six witnesses have
been recorded. The matter is listed for prosecution evidence on
17.5.2025.
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3. I have heard Mr. Ajay Thakur, learned counsel for
the petitioner and Mr. Ajit Sharma, learned Deputy Advocate
General, for the respondent-State.
4. Mr Ajay Thakur, learned counsel for the petitioner,
submitted that the petitioner is innocent and he was falsely
implicated. The prosecution has examined six witnesses as per
the status report in two years. One witness has turned hostile.
The right to speedy trial of the petitioner is being violated.
Hence he prayed that the present petition be allowed and the
petitioner be released on bail.
5. Mr. Ajit Sharma, learned Deputy Advocate General
for the respondent-State, submitted that he is involved in the
commission of a serious offence. There is sufficient material to
connect the petitioner with the commission of a crime. The
rigours of Section 37 apply to the present case and the
petitioner has not satisfied the twin conditions laid down in
Section 37 of the NDPS Act. Therefore, he prayed that the
present petition be dismissed.
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6. I have given considerable thought to the
submissions made at the bar and have gone through the
records carefully.
7. The parameters for granting bail were considered
by the Hon’ble Supreme Court in Ramratan v. State of M.P.,
2024 SCC OnLine SC 3068, wherein it was observed as follows: –
“12. The fundamental purpose of bail is to ensure the
accused’s presence during the investigation and trial.
Any conditions imposed must be reasonable and
directly related to this objective. This Court in Parvez
Noordin Lokhandwalla v. State of Maharastra (2020) 10
SCC 77 observed that though the competent court is
empowered to exercise its discretion to impose “any
condition” for the grant of bail under Sections 437(3)
and 439(1)(a) CrPC, the discretion of the court has to be
guided by the need to facilitate the administration of
justice, secure the presence of the accused and ensure
that the liberty of the accused is not misused to impede
the investigation, overawe the witnesses or obstruct the
course of justice. The relevant observations are
extracted herein below:
“14. The language of Section 437(3) CrPC which uses
the expression “any condition … otherwise in the
interest of justice”, has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose “any
condition” for the grant of bail under
Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the
accused and ensure that the liberty of the accused is not
misused to impede the investigation, overawe the
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2025:HHC:9297witnesses or obstruct the course of justice. Several
decisions of this Court have dwelt on the nature of
the conditions which can legitimately be imposed
both in the context of bail and anticipatory bail.”
(Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC
570, this Court discussed the scope of the discretion of
the Court to impose “any condition” on the grant of bail
and observed in the following terms: —
“15. The words “any condition” used in the
provision should not be regarded as conferring
absolute power on a court of law to impose any
condition that it chooses to impose. Any condition has
to be interpreted as a reasonable condition acceptable in
the facts permissible in the circumstance, and effective
in the pragmatic sense, and should not defeat the order
of grant of bail. We are of the view that the present
facts and circumstances of the case do not warrant
such an extreme condition to be imposed.”
(Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the application for bail and
observed:
“4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to
grant or refuse the prayer for anticipatory bail,
depending on the facts and circumstances of the
particular case. The factors to be taken into
consideration while considering an application for bail
are the nature of the accusation and the severity of the
punishment in the case of conviction and the nature of
the materials relied upon by the prosecution; reasonable
apprehension of tampering with the witnesses or
apprehension of threat to the complainant or the
witnesses; the reasonable possibility of securing the
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2025:HHC:9297presence of the accused at the time of trial or the
likelihood of his abscondence; character, behaviour and
standing of the accused; and the circumstances which
are peculiar or the accused and larger interest of the
public or the State and similar other considerations. A
criminal court, exercising jurisdiction to grant
bail/anticipatory bail, is not expected to act as a
recovery agent to realise the dues of the
complainant, and that too, without any trial.”
(Emphasis supplied)
8. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. The charge was framed in the present case on
7.12.2023. The prosecution has examined six witnesses out of
26 witnesses cited by it, which shows that the trial is
progressing normally. The petitioner has not filed the certified
copies of the order sheets but on the photocopies which do not
show that any adjournment has been sought by the
prosecution to produce the witnesses. Hence the plea that there
is a delay in the progress of the trial is not acceptable.
10. It was submitted that one eyewitness has turned
hostile and the prosecution case has become doubtful. This
submission will not help the petitioner. As per the status
report, the petitioner was found in possession of a commercial
quantity of charas which is a heinous offence. It was laid down
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by the Hon’ble Supreme Court in X Vs. State of Rajasthan
MANU/SC/1267/2024 that ordinarily, the Trial Court or the High
Court should not entertain the bail application of the accused
in serious cases after the commencement of trial. Bail cannot
be granted because there are some discrepancies in the
deposition, which affects the credibility of the victim. 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 in
entertaining 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 final
conclusion, which may either result in the conviction of
the Accused or 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 in
the event that the trial gets unduly delayed and that, too
for no fault on the part of the Accused, the Court may be
8
2025:HHC:9297justified in ordering his release on bail on the ground
that the right of the Accused to have a speedy trial has
been infringed.”
11. The status report shows that the petitioner was
found alone in the vehicle from which 2.603 kilograms of
charas was recovered. It is a commercial quantity and the
rigours of Section 37 of the ND&PS Act apply to the present
case.
12. Section 37 of the ND&PS Act provides that in an
offence involving 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 are 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 bond unless-
(i) the Public Prosecutor has been allowed
to oppose the application for such release,
and
(ii) where the Public Prosecutor opposes
the application, the court is satisfied that
9
2025:HHC:9297there 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.”
13. 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 about 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 about 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
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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 offence;
(2) that person is not likely to commit any offence
while on bail.”
14. 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 bail application 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 murders one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death
or in inflicting death on 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:
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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 deadly impact on the
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
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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 commission of an offence under the Act
unless twin 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.”
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15. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237 wherein it was observed at page 110:
“21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19,
24 or 27-A and also for offences involving a commercial
quantity are:
(i) The Prosecutor must be given an opportunity
to oppose the application for bail; and
(ii) There must exist “reasonable grounds to
believe” that (a) the person is not guilty of such
an offence, and (b) he is not likely to commit any
offence while on bail.
22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person
is not guilty of the offence. Interpreting the standard of
“reasonable grounds to believe”, a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798: (2007) 3 SCC (Cri) 505],
held that : (SCC pp. 801-02, paras 7-8 & 10-11)
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means
something more than prima facie grounds. It
connotes substantial probable causes for believing
that the accused is not guilty of the offence charged,
and this reasonable belief contemplated, in turn,
points to the existence of such facts and
circumstances as are 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
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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
idiosyncrasy 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 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
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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.”
16. It was held in Union of India v. Ajay Kumar Singh,
2023 SCC OnLine SC 346 that the bail cannot be granted without
complying with the requirements of Section 37 of the NDPS
Act. It was observed:
4. This apart, it is noticed that the High Court, in
passing the impugned order of bail, had lost sight of
Section 37 of the NDPS Act, which, inter alia, provides
that no person accused of an offence involving
commercial quantity shall be released on bail unless the
twin conditions laid down therein are satisfied, namely,
(i) the public prosecutor has been given an opportunity
to oppose the bail application; and (ii) the court is
satisfied that there are reasonable grounds for believing
that he is not guilty of such an offence and that he is not
likely to commit any such offence while on bail.
15. For the sake of convenience Section 37(1) is
reproduced hereinbelow:–
“37. Offences to be cognisable and nonbailable.-
(1) Notwithstanding anything contained in
the Criminal Procedure Code, 1973 (2 of 1974)-
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(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.
17. 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:–
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“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 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
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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 a
bail application 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
bail application made by an accused involved in an
offence under 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.”.
18. In the present case, there is sufficient material on
record to show the involvement of the petitioner in the
commission of the crime.
19. There is no material on record to show that the
petitioner would not commit a similar offence in case of his
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release on bail. Therefore, the twin conditions laid down in
Section 37 of the NDPS Act are not satisfied in the present case.
20. In view of above, the petitioner is not entitled to
bail; hence, the present petition fails and the same is
dismissed.
21. The observations made hereinabove are regarding
the disposal of this petition and will have no bearing,
whatsoever, on the case’s merits.
(Rakesh Kainthla)
Judge
7th April, 2025
(Chander)
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