Himachal Pradesh High Court
Decided On : 12.03.2025 vs State Of Himachal Pradesh on 12 March, 2025
Author: Virender Singh
Bench: Virender Singh
1 2025:HHC:5819
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. : 2941 of 2024
Decided on : 12.03.2025
Roshan Lal ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the applicant : Mr. Udit Shaurya Kaushik,
Advocate.
For the respondent : Mr. Mohinder Zharaick, Additional
Advocate General.
Virender Singh, Judge. (Oral)
Applicant-Roshan Lal, has filed the present
application, under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita (hereinafter referred to as the ‘BNSS’),
seeking the relief of bail, during the pendency of the trial,
in a case, arising out of FIR No. 200 of 2023, dated 23rd
June, 2023, registered with Police Station Sadar, Kullu,
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2025:HHC:5819
District Kullu, H.P., under Section 20 of the Narcotic Drugs
and Psychotropic Substances Act (hereinafter referred to as
the ‘NDPS Act‘).
2. According to the applicant, he has falsely been
implicated, in this case, and arrested by the police, at the
instance of some interested persons, for allegedly
possessing contraband (charas), weighing 3.15 kg, and, he
has nothing to do with the commission of the alleged
offence.
3. As per the case of the applicant, he belongs to a
respectable family and is deeply rooted in the society.
According to the applicant, he is permanent resident of
District Kullu, as such, there is no likelihood of his
absconding or jumping over the bail, if granted to him.
4. The investigation, in the present case, is stated
to be complete. As per the applicant, the charge sheet has
been filed, the competent Court of law has taken the
cognizance and charges have been framed, however, out of
22 prosecution witnesses, till date, only four witnesses
have been examined and the case was fixed for 3 rd March,
2025.
3 2025:HHC:5819
5. The applicant has sought his release, mainly,
on the ground of inordinate delay in trial.
6. Apart from this, the learned counsel appearing
on behalf of the applicant, has given certain undertakings,
on behalf of the applicant, for which, the applicant is ready
to abide by, in case, ordered to be released, on bail, during
the pendency of the trial.
7. On the basis of the above facts, a prayer has
been made to allow the bail application.
8. When put to notice, police has filed the status
report, disclosing therein that on 23rd June, 2023,
Inspector Daya Ram, Incharge, SIU, Kullu, alongwith other
police official, was on patrolling duty and when, they were
present at a bridge on Jari-Malana road, then, at about
1.30 p.m., from Malana side, a white coloured car, being
driven by its driver, came there. The registration of the
said vehicle was found to be HP 01K 6991. Only, the
driver was there in the car.
8.1. When, the car was stopped, the driver
questioned the act of the police, as, they were in civil dress,
upon which, the IO has shown his identity card. Upon
4 2025:HHC:5819
this, the said person got perplexed. On inquiry, the said
person disclosed his name as Roshan Lal, s/o Shyam Lal
(applicant). When, the car was checked, contraband, i.e.
charas, weighing 3 kg 15 gram was recovered.
8.2. On the basis of the ruqua, submitted by the IO,
FIR was registered and the accused (applicant) was
arrested. After receiving the positive report from SFSL
Junga, charge sheet has been filed against the applicant,
before the competent Court of law and the case was listed
for recording the statements of the prosecution witnesses
on 3rd March, 2025.
9. The applicant, in the present case, has been
arrested, under the provisions of NDPS Act. The
legislature, in its wisdom, has enacted this statute to curb
the menace of drug abuse with stringent punishment.
Certain conditions are there in the NDPS Act in the shape
of Section 37 of NDPS Act, which are, in addition to the
conditions, as contained in Section 483 of the BNSS.
Before releasing a person on bail, those conditions, as
enumerated under Section 37 of the NDPS Act, are to be
5 2025:HHC:5819
fulfilled, if the accused has been arrested for the offence,
involving commercial quantity of contraband.
10. Once, it has been held that the contraband
allegedly recovered from the possession of the accused
(applicant) falls in the category of ‘commercial quantity’, as
per the Notification issued by the Central Government,
then, the rigors of Section 37 of the NDPS Act come into
play.
11. The contraband allegedly recovered from the
applicant, admittedly, falls within the definition of
‘commercial quantity’. As such, the rigors of Section 37 of
NDPS Act are applicable, in this case.
12. The provisions of Section 37 of the NDPS Act,
have been discussed and explained by a three Judge
Bench of the Hon’ble Supreme Court, way back in the year
2004, in cases, titled as Collector of Customs, New Delhi
versus Ahmadalieva Nodira, reported in (2004) 3
Supreme Court Cases 549, and Narcotics Control
Bureau versus Dilip Pralhad Namade, reported in (2004)
3 Supreme Court Cases 619. The relevant paras 9 to 11
6 2025:HHC:5819
of the judgment in Dilip Pralhad Namade‘s case (supra),
are reproduced, as under:
“9. As observed by this Court in Union of India v.
Thamisharasi & Ors. (JT 1995(4) SC 253) clause (b)
of sub-section (1) of Section 37 imposes limitations
on granting of bail in addition to those provided
under the Code. The two limitations are (1) an
opportunity to the public prosecutor to oppose the
bail application and (2) satisfaction of the Court that
there are reasonable grounds for believing that the
accused is not guilty of such offence and that he is
not likely to commit any offence while on bail.
10. The limitations on granting of bail come in only
when the question of granting bail arises on merits.
Apart from the grant of opportunity to the public
prosecutor, the other twin conditions which really
have relevance so far the present accused-
respondent is concerned, are (1) the satisfaction of
the Court that there are reasonable grounds for
believing that the accused is not guilty of the alleged
offence and that he is not likely to commit any
offence while on bail. The conditions are cumulative
and not alternative. The satisfaction contemplated
regarding the accused being not guilty has to be
based for reasonable grounds. 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 existence of
such facts and circumstances as are sufficient in
themselves to justify satisfaction that the accused is
not guilty of the alleged offence and he is not likely
to commit any offence while on bail. This nature of
embargo seems to have been envisaged keeping in
view the deleterious nature of the offence,
necessitates of public interest and the normal
tendencies of the persons involved in such network
to pursue their activities with greater vigour and
make hay when, at large. In the case at hand the
High Court seems to have completely overlooked the
underlying object of Section 37 and transgressed
the limitations statutorily imposed in allowing bail.
7 2025:HHC:5819
It did not take note of the confessional statement
recorded under Section 67 of the Act.
11. A bare reading of the impugned judgment
shows that the scope and ambit of Section 37 of the
NDPS Act was not kept in view by the High Court.
Mere non-compliance of the order passed for supply
of copies, if any, cannot as in the instant case
entitle an accused to get bail notwithstanding
prohibitions contained in Section 37.”
13. The term ‘reasonable’ has elaborately been
discussed by the Hon’ble Supreme Court, in case, titled as
Union of India versus Shiv Shanker Kesari, reported in
(2007) 7 Supreme Court Cases 798. The relevant paras-
8 to 11 of the judgment are reproduced, as under:
“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. … In Strouds Judicial Dictionary, Fourth
Edition, page 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: Municipal Corporation of Delhi v. M/s Jagan
Nath Ashok Kumar and another (1987) 4 SCC 497.
and Gujarat Water Supplies and Sewerage Board v.
Unique Erectors (Gujarat) Pvt. Ltd. and another
[(1989) 1 SCC 532].
9. “9. …It is often said that “an attempt to give a
specific meaning to the word “reasonable” is trying
to count what is not number and measure what is
8 2025:HHC:5819
not space”. The author of Words and Phrases
(Permanent Edition) has quoted from Nice &
Schreiber 123 F. 987, 988 to give a plausible
meaning for the said word. He says,
‘the expression “reasonable” is a relative term,
and the facts of the particular controversy must
be considered before the question as to what
constitutes reasonable can be determined’.
It is not meant to be expedient or convenient but
certainly something more than that.”
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 Corporation of
Greater Mumbai and another 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.”
14. This view has again been reiterated by the
Hon’ble Supreme Court in a latest decision, in case, titled
as State of Kerala and others versus Rajesh and others,
reported in (2020) 12 Supreme Court Cases 122. The
relevant paras 18 to 21 of the judgment are reproduced, as
under:
9 2025:HHC:5819
“18. This Court has laid down broad parameters to
be followed while considering the application for
bail moved by the accused involved in offences
under 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 murder of
one or two persons, while those persons who are
dealing in narcotic drugs are instrumental in
causing death or in inflicting deathblow 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.
Reason may be 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 v. 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 deadly impact on the society as a
whole, Parliament in its wisdom, has made
effective provisions by introducing this Act 81
of 1985 specifying mandatory minimum
imprisonment and fine.
10 2025:HHC:5819
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.”
19. 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 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 offence. If
either of these two conditions is not satisfied, the
ban for granting bail operates.
20. The expression “reasonable grounds” means
something more than prima facie grounds. It
contemplates substantial probable causes for
11 2025:HHC:5819
believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the
provision requires 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.
21. We may further like to observe that the learned
Single Judge has failed to record a finding
mandated under Section 37 of the NDPS Act which
is a sine qua non for granting bail to the accused
under the NDPS Act.”
15. In a recent decision, in case, titled as Narcotics
Control Bureau versus Mohit Aggarwal, reported in AIR
2022 SC 3444, the Hon’ble Supreme Court has reiterated
the earlier view regarding compliance of the conditions, as
enumerated in Section 37 of the NDPS Act. The relevant
paras 10 to 15 of the judgment are reproduced, as under:
“10. The provisions of Section 37 of the NDPS Act
read as follows:
“[37. Offences to be cognizable 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 cognizable;
(b) no person accused of an offence
punishable for [offences under section 19 or
section 24 or section 27A and also for offences
12 2025:HHC:5819involving 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.
(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.
11. It is evident from a plain reading of the non-
obstante clause inserted in sub-section (1) and the
conditions imposed in subsection (2) of Section 37
that there are certain restrictions placed on the
power of the Court when granting bail to a person
accused of having committed an offence under the
NDPS Act. Not only are the limitations imposed
under Section 439 of the Code of Criminal
Procedure, 1973 to be kept in mind, the restrictions
placed under clause (b) of sub-section (1) of Section
37 are also to be factored in. The conditions
imposed in sub-section (1) of Section 37 is that (i)
the Public Prosecutor ought to be given an
opportunity to oppose the application moved by an
accused person for release and (ii) if such an
application is opposed, then the Court must be
satisfied that there are reasonable grounds for
believing that the person accused is not guilty of
such an offence. Additionally, the Court must be
satisfied that the accused person is unlikely to
commit any offence while on bail.
12. The expression “reasonable grounds” has come
up for discussion in several rulings of this Court.
In “Collector of Customs, New Delhi v.
Ahmadalieva Nodira“, (2004) 3 SCC 549, a
decision rendered by a Three Judges Bench of this
Court, it has been held thus:
13 2025:HHC:5819
“7. The limitations on granting of bail come in
only when the question of granting bail arises
on merits. Apart from the grant of opportunity
to the Public Prosecutor, the other twin
conditions which really have relevance so far
as the present accused respondent is
concerned, are: the satisfaction of the court
that there are reasonable grounds for
believing that the accused is not guilty of the
alleged offence and that he is not likely to
commit any offence while on bail. The
conditions are cumulative and not alternative.
The satisfaction contemplated regarding the
accused being not guilty has to be based on
reasonable grounds. 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 existence of such facts
and circumstances as are sufficient in
themselves to justify satisfaction that the
accused is not guilty of the alleged
offence.” [emphasis added]
13. The expression “reasonable ground” came up
for discussion in “State of Kerala and others Vs.
Rajesh and others” (2020) 12 SCC 122 and this
Court has observed as below:
“20. 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 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
14 2025:HHC:5819
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.” [emphasis added]
14. To sum up, the expression “reasonable
grounds” used in clause (b) of Sub-Section (1)
of Section 37 would mean credible, plausible
and grounds for the Court to believe that the
accused person is not guilty of the alleged
offence. For arriving at any such conclusion,
such facts and circumstances must exist in a
case that can persuade the Court to believe
that the accused person would not have
committed such an offence. Dove-tailed with
the aforesaid satisfaction is an additional
consideration that the accused person is
unlikely to commit any offence while on bail.
15. We may clarify that at the stage of
examining an application for bail in the
context of the Section 37 of the Act, the Court
is not required to record a finding that the
accused person is not guilty. The Court is also
not expected to weigh the evidence for arriving
at a finding as to whether the accused has
committed an offence under the NDPS Act or
not. The entire exercise that the Court is
expected to undertake at this stage is for the
limited purpose of releasing him on bail. Thus,
the focus is on the availability of reasonable
grounds for believing that the accused is not
guilty of the offences that he has been
charged with and he is unlikely to commit an
offence under the Act while on bail.”
16. The Hon’ble Supreme Court in a case, Criminal
Appeal No. 5544 of 2024, titled as ‘Narcotics Control
Bureau versus Kashif’, Neutral Citation No. 2024 INSC
1045, has again reiterated the law, as enumerated by it, in
Mohit Aggarwal‘s case (supra). The Hon’ble Supreme
15 2025:HHC:5819
Court, in this case, has held that the provisions of Section
37 of NDPS Act are mandatory in nature. Relevant
paragraphs 8 and 39 of the said judgment are reproduced,
as under:
“8. There has been consistent and persistent view
of this Court that in the NDPS cases, where the
offence is punishable with minimum sentence of ten
years, the accused shall generally be not 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 finding as mandated in
Section 37 is a sine qua non for granting bail to the
accused involved in the offences under the said Act.
Apart from the granting opportunity of hearing to
the Public Prosecutor, the other two conditions i.e.,
(i) the satisfaction of the court that there are
reasonable grounds for believing that the accused is
not guilty of the alleged offence and that (ii) he is
not likely to commit any offence while on bail, are
the cumulative and not alternative conditions.
xxx xxx xxx
39. The upshot of the above discussion may be
summarized as under:
(i) The provisions of NDPS Act are required to be
interpreted keeping in mind the scheme, object and
purpose of the Act; as also the impact on the society
as a whole. It has to be interpreted literally and not
liberally, which may ultimately frustrate the object,
purpose and Preamble of the Act.
(ii) While considering the application for bail, the
Court must bear in mind the provisions of Section
37 of the NDPS Act which are mandatory in nature.
Recording of findings as mandated in Section 37 is
sine qua non is known for granting bail to the
accused involved in the offences under the NDPS
Act.
16 2025:HHC:5819
(iii) The purpose of insertion of Section 52A laying
down the procedure for disposal of seized Narcotic
Drugs and Psychotropic Substances, was to ensure
the early disposal of the seized contraband drugs
and substances. It was inserted in 1989 as one of
the measures to implement and to give effect to the
International Conventions on the Narcotic drugs and
psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the
procedure as contemplated in sub-section (1)
thereof, and any lapse or delayed compliance
thereof would be merely a procedural irregularity
which would neither entitle the accused to be
released on bail nor would vitiate the trial on that
ground alone.
(v) Any procedural irregularity or illegality found to
have been committed in conducting the search and
seizure during the course of investigation or
thereafter, would by itself not make the entire
evidence collected during the course of
investigation, inadmissible. The Court would have
to consider all the circumstances and find out
whether any serious prejudice has been caused to
the accused.
(vi) Any lapse or delay in compliance of Section 52A
by itself would neither vitiate the trial nor would
entitle the accused to be released on bail. The Court
will have to consider other circumstances and the
other primary evidence collected during the course
of investigation, as also the statutory presumption
permissible under Section 54 of the NDPS Act.”
(self-emphasis supplied)
17. In view of the above, there is nothing on the
record to give an occasion for this Court to hold that the
twin conditions, as enumerated in Section 37 of the NDPS
Act, are in favour of the applicant, in the present case.
17 2025:HHC:5819
18. The accused (applicant), in this case, was
arrested on 23rd June, 2023 and as per the stand of the
applicant, out of 22 prosecution witnesses, only four have
been examined. As such, it cannot be said that there is
any inordinate delay in the trial.
19. Considering all these facts, this Court is of the
view that the applicant is not able to make out a case, on
the basis of which, it can be said that the applicant has not
committed the offence and in case, he is ordered to be
released, on bail, he is not likely to commit any offence. As
such, in the absence of the satisfaction of the twin
conditions, the applicant is not held entitled for any relief,
under Section 483 of the BNSS. Consequently, the bail
application is dismissed.
20. Any of the observations, made herein above,
shall not be taken as an expression of opinion, on the
merits of the case, as these observations, are confined,
only, to the disposal of the present bail application.
( Virender Singh )
Judge
March 12, 2025
( rajni )