Himachal Pradesh High Court
Harshit Sharma vs State Of Himachal Pradesh on 13 March, 2025
Author: Virender Singh
Bench: Virender Singh
( 2025:HHC:6017 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP (M) No. 386 of 2025
Reserved on : 10.03.2025
Decided on : 13.03.2025
Harshit Sharma ...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. N.K. Thakur, Senior Advocate
with Mr. Divya Raj Singh & Mr.
Karanveer Singh, Advocates.
For the respondent : Mr. Mohinder Zharaick, Additional
Advocate General, assisted by HC
Sudesh Kumar No.79, I.O., Police
Station, Palampur.
Virender Singh, Judge
ApplicantHarshit Sharma, has filed the present
application, under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as the
‘BNSS’), with a prayer to release him on bail, during the
pendency of trial, in case FIR No.46 of 2024, dated
04.04.2024, registered, under Sections 20, 25 and 29 of
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 ( 2025:HHC:6017 )
the Narcotic Drugs & Psychotropic Substances Act
(hereinafter referred to as the ‘NDPS Act‘), with Police
Station Palampur, District Kangra, H.P.
2. According to the applicant, he has falsely been
arrested, in the present case, on the allegations that the
taxi, being driven by him, when, searched by the police
party, Charas weighing 1 kilogram 30 grams was
recovered.
3. It is the further case of the applicant that no
recovery has been effected from him and he is innocent
person and earning his livelihood, by plying taxi. He has
no knowledge as to what was being carried by the
passenger.
4. As per the applicant, he is in custody for the
last about one year. Investigation, in the present case, is
stated to have been completed.
5. All these facts have been highlighted to show
that the custodial interrogation of the applicant is no
longer required by the Police, in this case.
6. The applicant has also tried his luck by moving
similar application, before learned Special JudgeII, Kangra
3 ( 2025:HHC:6017 )
at Dharamshala, however, his application was dismissed,
vide order, dated 27th November, 2024.
7. Lastly, it has been pleaded that he is young boy
of 21 years and no one is there to look after his aged
parents.
8. On the basis of the above facts, Mr. N.K.
Thakur, learned Senior Advocate assisted by Mr. Divya Raj
Singh & Mr. Karanveer Singh, Advocates, appearing for the
applicant, has argued that the applicant is entitled to the
relief, as claimed in the application.
9. In order to substantiate his arguments, learned
Senior counsel has relied upon the decision of Hon’ble
Supreme Court in Criminal Appeal No.1221 of 2017,
titled Sri Shankar Dongarisaheb Bhosale versus The
State of Karnataka.
10. On the basis of the above facts, a prayer has
been made to allow the application.
11. When put to notice, the police has filed
the status report disclosing therein, that on 03.04.2024, at
about 10.15 p.m., HC Sudesh Kumar No.79, along with
other police officials, was on patrolling duty to detect the
4 ( 2025:HHC:6017 )
crime relating to excise and Narcotic drugs and was
present at a place known as Upper Daad, at Chamunda
Palampur road. In the meanwhile, they noticed a white
coloured Alto Car bearing registration No.HP01D8247,
being driven by its driver, coming from Chamunda side.
11.1. The driver of the said car, on noticing the
vehicle of the police, at once, turned his vehicle on the link
road. Since, the link road was not so wide, as such, he
could drive the same only upto 20 meters.
11.2. The activities of the driver raised suspicion in
the mind of the I.O., that he might be having stolen articles
in his vehicle, upon which, the I.O. and other police
officials reached at the place, where, the vehicle was
stopped by its driver.
11.3. Since, the I.O., intended to search the vehicle,
on the suspicion that some stolen articles might be there,
as such, he has associated two independent witnesses
passing through there; namely Kalyan Chand and Sunny
Kumar, after apprising them about the factual position.
11.4. Thereafter, the person, who was on the wheel,
was inquired, who on inquiry disclosed his name as
5 ( 2025:HHC:6017 )
Harshit Sharma (applicant) and the person sitting on the
front seat disclosed his name as Dimpi Dadhwal. Both the
persons were directed to remain sitted in the vehicle with a
direction to switch on the cabin light.
11.5. When, the light was switched on, then the I.O.
noticed a small bag, lying near the feet of Dimpi Dadhwal,
which, on opening, was found to be containing Charas and
on weighment, it was found to be 1 kilogram 30 grams.
11.6. Consequently, the said contraband was taken
into possession and rukka was sent to the Police Station
for registration of the FIR. Accused were arrested.
11.7. After completion of the codal formalities, the
contraband, so recovered, was sent to SFSL Junga, for
analysis.
12. During investigation, accused Dimpi Dadhwal,
has disclosed that he is addict of Charas. He has
purchased the Charas from a person of Chintpurni and he
has to sell the same, in order to repay his bank loan. He
has hired the taxi for Palampur, in order to sell the same
and for that purpose accused Harshit Sharma (applicant)
came with him.
6 ( 2025:HHC:6017 )
13. After, receiving positive report from the SFSL,
Junga, the police has filed the final report against the
accused, before the Court of learned Sessions Judge,
Kangra at Dharamshala.
14. On the basis of the above facts, a prayer has
been made to dismiss the application.
15. The accused (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 BNSS. Before
releasing a person on bail, those conditions, as
enumerated under Section 37 of the NDPS Act, are to be
fulfilled, if the accused has been arrested for the offence,
involving commercial quantity of contraband.
16. Once, it has been held that the contraband
allegedly recovered from the possession of the accused falls
in the category of ‘commercial quantity’, as per the
7 ( 2025:HHC:6017 )
Notification issued by the Central Government, then, the
rigors of Section 37 of the NDPS Act come into play.
17. 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
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
subsection (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 accusedrespondent
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
8 ( 2025:HHC:6017 )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. 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.”
18. 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
9 ( 2025:HHC:6017 )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 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
10 ( 2025:HHC:6017 )
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.”
19. 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:
“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
11 ( 2025:HHC:6017 )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.
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 respondentaccused on bail.
Instead of attempting to take a holistic view of
the harmful socioeconomic consequences and
health hazards which would accompany
trafficking illegally in dangerous drugs, the
court should implement the law in the spirit
12 ( 2025:HHC:6017 )
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 nonobstante 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
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.”
20. 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
13 ( 2025:HHC:6017 )
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 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.
(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 subsection (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
14 ( 2025:HHC:6017 )
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 subsection (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:
“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
15 ( 2025:HHC:6017 )
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
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 SubSection (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. Dovetailed 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
16 ( 2025:HHC:6017 )
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.”
21. The Hon’ble Supreme Court in a recent decision
in Criminal Appeal No.5544 of 2024, titled as Narcotics
Control Bureau versus Kashif, (2024 INSC 1045), the
view as taken in Mohit Aggarwal‘s case supra has again
been reiterated. Relevant paragraphs 8 and 39 of the
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
17 ( 2025:HHC:6017 )
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.
(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) Subsection (2) of Section 52A lays down the
procedure as contemplated in subsection (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
18 ( 2025:HHC:6017 )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.
22. So far as the case law, which has been relied
upon by the learned Senior counsel in Sri Shankar
Dongarisaheb Bhosale‘s case (supra), is concerned, the
same, in no way, helps the case of the applicant, as, in this
case, there are specific allegations that on seeing the police
vehicle, the applicant, who was on the wheel of the vehicle,
from which, the contraband was recovered, turned the
same and drove the same to a link road. However, he
could not succeed to flee away as the road was narrow.
23. In the case before the Hon’ble Supreme Court,
the driver of the offending vehicle, when stopped, he had
made no efforts to run away, but, the two other passengers
19 ( 2025:HHC:6017 )
ran away, whereas, according to the allegations, as levelled
in the status report, the applicant not only fled away from
the spot, but, also facilitated his coaccused to flee away
from the spot.
24. Considering all these facts, there is nothing on
the record, on the basis of which, it can be said, at this
stage, that the applicant has not committed the offence or
while on bail, he will not commit any offence. As such, no
case to pass any order in favour of the applicant, under
Section 483 BNSS, is made out, at this stage.
Consequently, the bail application of the applicant is
dismissed.
25. 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 13, 2025(ps)