Himachal Pradesh High Court
Reserved On: 16.05.2025 vs Vivek Sharma on 20 June, 2025
2025:HHC:18956
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 2291 of 2024
Reserved on: 16.05.2025
Date of Decision: 20.06.2025.
Narcotics Control Bureau ...Petitioner
Versus
Vivek Sharma ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Ashwani Pathak, Senior
Advocate with Mr. Dev Raj,
Advocate.
For the Respondent : Mr. Sanjeev Kumar Suri,
Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition seeking
cancellation of the bail granted to the respondent (accused
before the learned Trial Court) by the learned Special Judge,
Kangra (learned Trial Court). (Parties shall hereinafter be referred
to in the same manner as they are arrayed before the learned Trial
Court for convenience.)
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
2025:HHC:18956
2. It has been asserted that the complainant, Narcotics
Control Bureau (NCB), registered a Crime No. 52 of 2022, dated
21.7.2022, at Sub Zone Office, Mandi, District Mandi, H.P.,
pursuant to secret information received by it that a car bearing
registration No. PB-07Y-3385 was involved in the trafficking of
contraband. The vehicle was intercepted near Shahpur, District
Kangra, H.P. and 1.950 kilograms of charas was recovered from
the vehicle. Vivek Sharma, Rakesh Kumar and Praveen Kumari
were travelling in the vehicle. The quantity of charas recovered
from the car was commercial, and the rigours of Section 37 of
the ND&PS Act apply to the present case. Accused Vivek Sharma
made a statement under Section 67 of the ND&PS Act that
contraband was purchased from Taaz Mohammad, who was
known to Praveen Kumari. Taaz Mohammad has also procured
some charas from Latif Mohammad. Hence, the NCB filed a
complaint against five persons. Learned Special Judge, Kangra
granted bail to the accused, Vivek Sharma. Learned Special Judge
exceeded his jurisdiction by granting bail to the petitioner by
overlooking the mandate of Section 37 of the ND&PS Act.
Another FIR was registered against the respondent, and his bail
application was liable to be rejected. Even if the respondent was
3
2025:HHC:18956
suffering from a paralytic attack, an interim bail could have
been granted. Therefore, it was prayed that the present petition
be allowed and the bail granted by the learned Trial Court be
cancelled.
3. No reply was filed.
4. I have heard Mr. Ashwani Pathak, learned Senior
Counsel, assisted by Mr. Dev Raj, Advocate, for the NCB and
Mr. Sanjeev Kumari Suri, Advocate, learned counsel for the
respondent/accused.
5. Mr. Ashwani Pathak, learned Senior Counsel for the
petitioner, submitted that the learned Trial Court erred in
granting bail to the respondent. As per the complaint, a
commercial quantity of charas was recovered from the vehicle in
which the petitioner was travelling. Rigours of Section 37 of the
ND&PS Act apply to the present case, and the bail could not have
been granted. Therefore, he prayed that the present petition be
allowed and the bail granted to the respondent be cancelled.
6. Mr. Sanjeev Kumar Suri, learned counsel for the
respondent/accused, submitted that the accused was suffering
from a paralytic attack. He was wheelchair-bound. The bail
4
2025:HHC:18956
should have been granted in the peculiar facts and
circumstances. He relied upon the judgment in Jagdish Lal v.
State of H.P. 2020:HHC:1979 and Salim Valimamad Majothi Vs.
State of Gujarat 2023 SCC OnLine SC 659 in support of his
submission.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The Hon’ble Supreme Court held in Ajwar v. Waseem
(2024) 10 SCC 768: 2024 SCC OnLine SC 974 that the bail, once
granted, should not be cancelled mechanically; however, an
unreasoned and perverse order is open to interference by the
Superior Court. The bail can be cancelled if there are serious
allegations against the accused. It was observed at page 783:
“Relevant parameters for granting bail
26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal offence,
the Court must consider relevant factors like the nature of
the accusations made against the accused, the manner in
which the crime is alleged to have been committed, the
gravity of the offence, the role attributed to the accused,
the criminal antecedents of the accused, the probability of
tampering of the witnesses and repeating the offence, if
the accused are released on bail, the likelihood of the
accused being unavailable in the event bail is granted, the
possibility of obstructing the proceedings and evading the
courts of justice and the overall desirability of releasing
5
2025:HHC:18956the accused on bail. [Refer: Chaman Lal v. State of
U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004
SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh
Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7
SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of
U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1
SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis
Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee,
(2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru
Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16
SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State
(NCT of Delhi) [Anil Kumar Yadav v. State (NCT of Delhi),
(2018) 12 SCC 129 : (2018) 3 SCC (Cri)
425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar,
(2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]
27. It is equally well settled that bail, once granted, ought
not to be cancelled in a mechanical manner. However, an
unreasoned or perverse bail order is always open to
interference by the superior court. If there are serious
allegations against the accused, even if he has not
misused the bail granted to him, such an order can be
cancelled by the same Court that has granted the bail. Bail
can also be revoked by a superior court if it transpires that
the courts below have ignored the relevant material
available on record or not looked into the gravity of the
offence or the impact on society, resulting in such an
order. In P v. State of M.P. [P v. State of M.P., (2022) 15 SCC
211] decided by a three-judge Bench of this Court
[authored by one of us (Hima Kohli, J.)] has spelt out the
considerations that must weigh with the Court for
interfering in an order granting bail to an accused under
Section 439(1)CrPC in the following words : (SCC p. 224,
para 24)
“24. As can be discerned from the above decisions,
for cancelling bail once granted, the court must
consider whether any supervening circumstances
have arisen or the conduct of the accused post grant
of bail demonstrates that it is no longer conducive
6
2025:HHC:18956to a fair trial to permit him to retain his freedom by
enjoying the concession of bail during trial [Dolat
Ram v. State of Haryana, (1995) 1 SCC 349: 1995 SCC
(Cri) 237]. To put it differently, in ordinary
circumstances, this Court would be loathe to
interfere with an order passed by the court below
granting bail, but if such an order is found to be
illegal or perverse or premised on material that is
irrelevant, then such an order is susceptible to
scrutiny and interference by the appellate court.”
Considerations for Setting Aside Bail Orders
28. The considerations that weigh with the appellate court
for setting aside the bail order on an application being
moved by the aggrieved party include any supervening
circumstances that may have occurred after granting
relief to the accused, the conduct of the accused while on
bail, any attempt on the part of the accused to
procrastinate, resulting in delaying the trial, any instance
of threats being extended to the witnesses while on bail,
any attempt on the part of the accused to tamper with the
evidence in any manner. We may add that this list is only
illustrative and not exhaustive. However, the court must
be cautious that at the stage of granting bail, only a prima
facie case needs to be examined, and detailed reasons
relating to the merits of the case that may cause prejudice
to the accused ought to be avoided. Suffice it to state that
the bail order should reveal the factors that have been
considered by the Court for granting relief to the accused.
29. In Jagjeet Singh [Jagjeet Singh v. Ashish Mishra, (2022) 9
SCC 321: (2022) 3 SCC (Cri) 560], a three-judge Bench of
this Court has observed that the power to grant bail under
Section 439CrPC is of wide amplitude and the High Court
or a Sessions Court, as the case may be, is bestowed with
considerable discretion while deciding a bail application.
But this discretion is not unfettered. The order passed
must reflect the due application of the judicial mind
following well-established principles of law. In the
ordinary course, courts would be slow to interfere with
7
2025:HHC:18956
the order where bail has been granted by the courts below.
But if it is found that such an order is illegal or perverse or
based upon utterly irrelevant material, the appellate court
would be well within its power to set aside and cancel the
bail. (Also refer: Puran v. Rambilas [Puran v. Rambilas,
(2001) 6 SCC 338: 2001 SCC (Cri) 1124]; Narendra K.
Amin v. State of Gujarat [Narendra K. Amin v. State of
Gujarat, (2008) 13 SCC 584: (2009) 3 SCC (Cri) 813].)
9. Similar is the judgment passed by the Hon’ble
Supreme Court in Manik Madhukar versus Vitthal Damuji Meher
and Ors. 2024: INSC:636 wherein it was observed as under: –
“19. Courts, while granting bail, are required to consider
relevant factors such as the nature of the accusation,
the role ascribed to the accused concerned,
possibilities/chances of tampering with the evidence
and/or witnesses, antecedents, flight risk, et al. Speaking
through Hima Kohli, J., the present coram in Ajwar v.
Waseem, 2024 SCC OnLine SC 974, apropos relevant
parameters for granting bail, observed:
“26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal
offence, the Court must consider relevant factors like the
nature of the accusations made against the accused, the
manner in which the crime is alleged to have been
committed, the gravity of the offence, the role attributed
to the accused, the criminal antecedents of the accused,
the probability of tampering of the witnesses and
repeating the offence, if the accused are released on bail,
the likelihood of the accused being unavailable in the
event bail is granted, the possibility of obstructing the
proceedings and evading the courts of justice and the
overall desirability of releasing the accused on bail.
(Refer: Chaman Lal v. State of U.P. (2004) 7 SCC 525;
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav (supra) (2004) 7 SCC 528; Masroor v. State of Uttar
8
2025:HHC:18956Pradesh (2009) 14 SCC 286; Prasanta Kumar
Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; Neeru
Yadav v. State of Uttar Pradesh (2014) 16 SCC 508; Anil
Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129;
Mahipal v. Rajesh Kumar @ Polia (supra) (2020) 2 SCC
118.
27. It is equally well settled that bail, once granted, ought
not to be cancelled in a mechanical manner. However, an
unreasoned or perverse order of bail is always open to
interference by the Superior Court. If there are serious
allegations against the accused, even if he has not misused
the bail granted to him, such an order can be cancelled by
the same Court that has granted the bail. Bail can also be
revoked by a Superior Court if it transpires that the courts
below have ignored the relevant material available on
record or not looked into the gravity of the offence or the
impact on society, resulting in such an order. In P v. State
of Madhya Pradesh (supra) (2022), 15 SCR 211 decided
by a three-judge bench of this Court [authored by one
of us (Hima Kohli, J)] has spelt out the considerations
that must be weighed with the Court for interfering in
an order granting bail to an accused under Section
439(1) of the CrPC in the following words:
“24. As can be discerned from the above
decisions, for cancelling bail once granted, the court
must consider whether any supervening circumstances
have arisen or the conduct of the accused post grant of
bail demonstrates that it is no longer conducive to a
fair trial to permit him to retain his freedom by
enjoying the concession of bail during trial [Dolat
Ram v. State of Haryana, (1995) 1 SCC 349: 1995 SCC
(Cri) 237]. To put it differently, in ordinary
circumstances, this Court would be loathe to interfere
with an order passed by the court below granting bail,
but if such an order is found to be illegal or perverse or
premised on material that is irrelevant, then such an
order is susceptible to scrutiny and interference by the
appellate court.” (emphasis supplied)
9
2025:HHC:18956
20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC
1085, speaking through one of us (Ahsanuddin
Amanullah, J.), the Court, while setting aside an order of
the Punjab and Haryana High Court granting
(anticipatory) bail, discussed and reasoned:
“7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide
the grant of bail in Ram Govind Upadhyay v. Sudarshan
Singh (2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan (2004) 7 SCC 528. In Prasanta
Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the
relevant principles were restated thus:
‘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
10
2025:HHC:18956
(viii) danger, of course, of justice being thwarted by
the grant of bail.’
8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC
118, this Court opined as under:
’16. The considerations that guide the power of an
appellate court in assessing the correctness of an order
granting bail stand on a different footing from an
assessment of an application for the cancellation of
bail. The correctness of an order granting bail is tested
on the anvil of whether there was an improper or
arbitrary exercise of discretion in the grant of bail. The
test is whether the order granting bail is perverse,
illegal or unjustified. On the other hand, an application
for cancellation of bail is generally examined on the
anvil of the existence of supervening circumstances or
violations of the conditions of bail by a person to
whom bail has been granted. …’
9. In Bhagwan Singh v. Dilip Kumar @ Deepu @
Depak, 2023 INSC 761, this Court, in view of Dolat
Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira
Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of
Telangana, (2018) 16 SCC 511, held as follows:
’13. It is also required to be borne in mind that when a
prayer is made for the cancellation of the grant of bail,
cogent and overwhelming circumstances must be
present, and bail, once granted, cannot be cancelled in
a mechanical manner without considering whether
any supervening circumstances have rendered it in
conducing to allow fair trial. This proposition draws
support from the Judgment of this Court in Daulat
Ram v. State of Haryana (1995) 1 SCC 349, Kashmira
Singh v. Duman Singh (1996) 4 SCC
693 and XXX v. State of Telangana (2018) 16 SCC 511.’
10. In XXX v. Union Territory of Andaman & Nicobar
Islands, 2023 INSC 767, this Court noted that the
principles in Prasanta Kumar Sarkar (supra) stood
11
2025:HHC:18956
reiterated in Jagjeet Singh v. Ashish Mishra (2022) 9 SCC
321.
11. The contours of anticipatory bail have been
elaborately dealt with by 5-Judge Benches in Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 and Sushila Aggarwal v. State (NCT of Delhi), (2020)
5 SCC 1. Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694 is worthy of mention in
this context, despite its partial overruling in Sushila
Aggarwal (supra). We are cognizant that liberty is not to
be interfered with easily. More so when an order of pre-
arrest bail already stands granted by the High Court.
12. Yet, much like bail, the grant of anticipatory bail is to
be exercised with judicial discretion. The factors illustrated
by this Court through its pronouncements are illustrative
and not exhaustive. Undoubtedly, the fate of each case
turns on its own facts and merits.” (emphasis supplied)
21. In Ajwar (supra), this Court also examined the
considerations for setting aside bail orders in terms
below:
“28. The considerations that weigh with the appellate
Court for setting aside the bail order on an application
being moved by the aggrieved party include any
supervening circumstances that may have occurred after
granting relief to the accused, the conduct of the accused
while on bail, any attempt on the part of the accused to
procrastinate, resulting in delaying the trial, any instance
of threats being extended to the witnesses while on bail,
any attempt on the part of the accused to tamper with the
evidence in any manner. We may add that this list is only
illustrative and not exhaustive. However, the court must
be cautious that at the stage of granting bail, only a prima
facie case needs to be examined, and detailed reasons
relating to the merits of the case that may cause prejudice
to the accused ought to be avoided. Suffice it to state that
the bail order should reveal the factors that have been
considered by the Court for granting relief to the accused.
12
2025:HHC:18956
29. In Jagjeet Singh (supra) (2022) 9 SCC 321, a
three-judge bench of this Court has observed
that the power to grant bail under Section 439 Cr.
P.C. is of wide amplitude and the High Court or a
Sessions Court, as the case may be, is bestowed with
considerable discretion while deciding an application
for bail. But this discretion is not unfettered. The order
passed must reflect the due application of the judicial
mind following well-established principles of law. In
the ordinary course, courts would be slow to interfere
with the order where bail has been granted by the
courts below. But if it is found that such an order is
illegal or perverse or based upon utterly irrelevant
material, the appellate Court would be well within its
power to set aside and cancel the bail. (Also
refer: Puran v. Ram Bilas (2001) 6 SCC 338;
Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13
SCC 584)” (emphasis supplied)
10. As per the complaint, the petitioner was found
travelling in the vehicle from which 1.950 kilograms of charas
was recovered. In Madan Lal versus State of H.P. (2003) 7 SCC 465:
2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was
recovered from a vehicle, and it was held that all the occupants
of the vehicle would be in conscious possession of the
contraband. It was observed:
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on record
are that all the accused persons were travelling in a vehi-
cle, and as noted by the trial court, they were known to
13
2025:HHC:18956
each other, and it has not been explained or shown as to
how they travelled together from the same destination in
a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles
an offence. Section 20 appears in Chapter IV of the Act,
which relates to offences for possession of such articles.
It is submitted that in order to make the possession illicit,
there must be conscious possession.
21. It is highlighted that unless the possession was cou-
pled with the requisite mental element, i.e. conscious
possession and not mere custody without awareness of
the nature of such possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term
which assumes different colours in different contexts. It
may carry different meanings in contextually different
backgrounds. It is impossible, as was observed in the
Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC
52] to work out a completely logical and precise definition
of “possession” uniformly applicable to all situations in
the context of all statutes.
23. The word “conscious” means awareness about a par-
ticular fact. It is a state of mind which is deliberate or in-
tended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC
194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a
given case need not be physical possession but can be
constructive, having power and control over the article in
the case in question, while the person to whom physical
possession is given holds it subject to that power or con-
trol.
25. The word “possession” means the legal right to pos-
session (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC
498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it
was observed that where a person keeps his firearm in his
mother’s flat, which is safer than his own home, he must
be considered to be in possession of the same. (See Sulli-
14
2025:HHC:18956
van v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 :
(1976) 2 WLR 361 (QBD)] .)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of Section
54, where also presumption is also available to be drawn
from possession of illicit articles.
27. In the factual scenario of the present case, not only
possession but conscious possession has been
established. It has not been shown by the accused-
appellants that the possession was not conscious in the
logical background of Sections 35 and 54 of the Act.”
11. Therefore, in view of the binding precedent of the
Hon’ble Supreme Court, the respondent/accused has to be
treated in possession of 1.950 kilograms of charas, which is a
commercial quantity. Therefore, the rigours of Section 37 of the
ND&PS Act apply to the present case.
12. Section 37 of the NDPS 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 under:
“37. Offences are to be cognizable and non-bailable. – (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)–
15
2025:HHC:18956
(a) every offence punishable under this Act shall be
cognizable;
(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.”
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 on bail.
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 :
16
2025:HHC:18956
(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) Of offences involving 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.”
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 application for bail moved
by the accused involved in offences under the NDPS Act.
In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC
429, it has been elaborated as under:-
“7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a
murder case, the accused commits the murder of
one or two persons, while those persons who are
dealing in narcotic drugs are instrumental in
causing death or in inflicting death-blow to a
number of innocent young victims, who are
17
2025:HHC:18956vulnerable; 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 deadly impact on 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,
18
2025:HHC:18956
(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 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
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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.”
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
20
2025:HHC:18956
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
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
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2025:HHC:18956
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.
16. Learned Trial Court held in para-5 of judgment that
rigours of Section 37 of ND&PS Act apply to the present case. It
was noticed in the para-6, that it could not be said that there are
reasonable grounds for believing that the petitioner/accused is
not guilty of the offence as alleged. However, in view of the
special circumstances, the prayer for bail was accepted. The
special circumstances highlighted by the learned Trial Court
were that the petitioner had suffered a sudden attack of
paraplegia, due to which lower part of his body was not working.
He was stated to be admitted to Baba Hospital, Ludhiana.
17. These were irrelevant considerations. The sympathy
of the Court cannot override the law, and the learned Trial Court
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could not have ignored the mandate of Section 37 of the ND&PS
Act. Further, it was rightly submitted that interim bail could
have been granted instead of regular bail till the continuation of
the treatment.
18. In Jagdish Lal (supra), the State had submitted that it
was unable to provide the treatment to the accused due to the
COVID-19 Pandemic; therefore, the Court granted the bail. This
order was passed in peculiar facts and circumstances of the case,
and due to the COVID-19 Pandemic. In Salim Valiamad Majothi
(supra), the accused was incarcerated for more than one year
and seven months, and this was a circumstance for granting bail.
19. In the present case, the prescription slip dated
24.2.2025 was issued by Doctor Rajendra Prasad Government
Medical College Kangra at Tanda, which is near Dharamshala,
where the respondent could have easily received any treatment,
if so required.
20. Therefore, the learned Trial Court had exceeded its
jurisdiction while granting bail, ignoring the mandatory
provisions of Section 37 of the ND&PS Act. It was held in Satpal
Singh v. State of Punjab, (2018) 13 SCC 813: (2019) 1 SCC (Cri) 424:
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2025:HHC:18956
2018 SCC OnLine SC 415 that the bail granted in violation of
Section 37 of the NDPS Act cannot be sustained. It was observed
at page 820:
“14. Be that as it may, the order dated 21-9-2017 [Beant
Singh v. State of Punjab, 2017 SCC OnLine P&H 3801]
passed by the High Court does not show that there is any
reference to Section 37 of the NDPS Act. The quantity is
reportedly commercial. In the facts and circumstances of
the case, the High Court could not have and should not
have passed the order under Section 438 or 439 CrPC
without reference to Section 37 of the NDPS Act and
without entering a finding on the required level of
satisfaction in case the Court was otherwise inclined to
grant the bail. Such a satisfaction having not been
entered, the order dated 21-9-2017 [Beant Singh v. State of
Punjab, 2017 SCC OnLine P&H 3801] is only to be set aside
and we do so.”
21. This position was reiterated 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 115:
“36. The High Court has clearly overlooked crucial
requirements and glossed over the circumstances which
were material to the issue as to whether a case for the
grant of bail was established. In failing to do so, the order
of the High Court becomes unsustainable. Moreover, it
has emerged during the course of the hearing that after
the respondent was enlarged on bail, he has consistently
remained away from the criminal trial, resulting in the
issuance of a non-bailable warrant against him. The High
Court ought to have given due weight to the seriousness
and gravity of the crime, which it has failed to do.”
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22. In view of the above, the present petition is allowed,
and the order passed by the learned Trial Court granting bail to
the respondent is ordered to be cancelled. The respondent is
directed to surrender before the learned Trial Court within 15
days. However, it is expressly made clear that it will be open to
the learned Trial Court to make an arrangement for the
treatment, including interim bail, if deemed necessary in the
facts and circumstances of the case.
23. The observations made hereinabove are regarding
the disposal of the petition and will have no bearing,
whatsoever, on the case’s merits.
(Rakesh Kainthla)
Judge
20th June, 2025
(Chander)
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