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Uttarakhand High Court
Shanu vs State Of Uttarakhand on 12 August, 2025
2025:UHC:7419
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
2nd Bail Application No.193 of 2025
Shanu ......Applicant
Vs.
State of Uttarakhand .....Respondent
Presence:
Mr. Karan Singh Dugtal, learned counsel for the Applicant.
Mr. Rakesh Negi, learned Brief Holder, for the State.
Hon'ble Ashish Naithani, J.
1. The present bail application is the second application filed by the
Applicant, Shanu, aged about 33 years, S/o Shri Rahees Ahmad,
resident of Ward No. 08, Ram Katori, Fatehganj West, District Bareilly,
Uttar Pradesh, who is presently in judicial custody since 20.10.2024.
2. The case arises out of FIR No. 0165 of 2024 dated 19.10.2024,
registered under Sections 8, 21, 29 and 60 of the NDPS Act, 1985 at
Police Station Pulbhatta, District Udham Singh Nagar.
3. The case, in brief, is that on 19.10.2024, while the police were on
patrol duty near Shankar Farm, a 'Wagon-R' car approaching from
Kichha in the direction of Sitarganj was intercepted. The occupants of
the vehicle, namely the Applicant, Khurshid, and Aashma, appeared
nervous, and upon being strictly questioned, they allegedly confessed to
carrying smack for the purpose of sale.
4. After apprising them of their rights under Section 50 NDPS Act,
a search was conducted in the presence of the Circle Officer. From the
Applicant's trousers, two transparent foils containing a brown and
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2nd Bail Application No. 193 of 2025, Shanu Vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7419
maroon substance suspected to be smack were recovered. Similar
recoveries were made from co-accused Khurshid and Aashma.
5. The recovered contraband was seized, sealed, and samples were
drawn. The seized material was later sent for forensic examination. A
charge sheet has been filed against the Applicant and co-accused under
the aforesaid provisions.
6. The Applicant had earlier filed First Bail Application No. 2522 of
2024, which this Court dismissed vide order dated 03.04.2025. The
present is the second application under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023.
7. Learned counsel for the Applicant contends that the Applicant has
been languishing in judicial custody since 20.10.2024, and the trial is
not likely to conclude shortly. It is submitted that the Applicant has
already suffered a considerable period of incarceration, and prolonged
detention would amount to inflicting punishment before conviction.
8. It is further urged that the investigation is complete, the charge-
sheet has already been filed, and therefore, no purpose would be served
by keeping the Applicant confined any longer. The continued custody
of the Applicant is unnecessary for the progress of the investigation or
trial.
9. It is emphasised that the Applicant has no criminal antecedents, is
a permanent resident of Bareilly with strong social roots, and there is
no likelihood of his absconding or tampering with the prosecution
evidence. It is submitted that the Applicant undertakes to cooperate
with the trial and to abide by any stringent conditions that may be
imposed by this Court, including marking attendance before the trial
court and not leaving the jurisdiction without permission.
10. Reliance is also placed on the principle of parity, inasmuch as the
role attributed to the Applicant is not distinguishable from that of the
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2nd Bail Application No. 193 of 2025, Shanu Vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7419
co-accused. On these grounds, it is prayed that the Applicant be
released on bail.
11. On the other hand, learned Brief Holder for the State has
vehemently opposed the bail application. It is submitted that a recovery
of 353 grams of smack was effected from the conscious possession of
the Applicant, which squarely falls within the definition of commercial
quantity under the NDPS Act. Accordingly, the embargo under Section
37 of the Act comes into operation.
12. It is argued that the contraband was recovered from the very
pockets of the Applicant's trousers, thereby establishing his conscious
possession, and all statutory formalities were duly complied with. The
offence alleged is of a grave nature, and enlargement of the Applicant
on bail would have a serious adverse impact on society at large.
13. It is also contended that unless the Court is satisfied that there are
reasonable grounds for believing that the Applicant is not guilty of the
offence and that he is not likely to commit any offence while on bail,
the Applicant cannot be released in view of the statutory mandate of
Section 37 of the NDPS Act. It is thus prayed that the present
application be rejected.
14. Heard learned counsel for the Parties and perused the records.
15. At the outset, it is observed that several grounds relating to
alleged non-compliance with the mandatory provisions of the NDPS
Act, absence of independent witnesses, irregularities in inventory and
seizure, and other similar pleas had already been urged in the first bail
application of the Applicant. The same came to be considered and
rejected by this Court vide order dated 03.04.2025. Since those aspects
stand adjudicated, this Court does not deem it necessary to re-evaluate
them in the present application.
16. The principal ground now urged in the present bail application is
that the Applicant has remained in custody since 20.10.2024 and has
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2nd Bail Application No. 193 of 2025, Shanu Vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7419
already undergone substantial incarceration. It is submitted that the
investigation stands concluded and the charge sheet has been filed,
thereby rendering further detention unnecessary. Reliance is also placed
on the ground of parity.
17. It is further contended that the Applicant has no criminal
antecedents, is a permanent resident of Bareilly with established social
roots, and undertakes to abide by any stringent conditions that this
Court may impose.
18. While assessing the aforesaid contentions, it is necessary to keep
in view the statutory framework of the NDPS Act. The recovery
attributed to the Applicant is of 353 grams of smack
(diacetylmorphine), which clearly falls within the category of
commercial quantity, the notified threshold being 250 grams.
19. In matters involving commercial quantity, the rigours of Section
37(1)(b) of the NDPS Act are mandatory in nature.The provision
stipulates that no person accused of an offence involving commercial
quantity shall be released on bail unless (i) the Public Prosecutor has
been given an opportunity to oppose the application, and (ii) the Court
is satisfied 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.
20. The first condition stands fulfilled, inasmuch as the learned State
counsel has been heard opposing the application. As to the twin
conditions under clause (ii), this Court finds no material on record to
form an opinion at this stage that there are reasonable grounds for
believing that the Applicant is not guilty. The recovery of contraband
from the pockets of the Applicant's trousers, supported by the seizure
memo and case diary entries, remains intact on the record.
21. The plea of custody cannot, by itself, outweigh the statutory bar.
While prolonged detention is a matter of concern, in prosecutions under
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2nd Bail Application No. 193 of 2025, Shanu Vs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7419
the NDPS Act involving commercial quantity, such consideration
cannot eclipse the express mandate of Section 37. Similarly, the plea of
parity does not advance the Applicant's case when the record bears out
the direct recovery from his person.
22. As regards the Applicant's clean antecedents and social roots,
though relevant in general bail considerations, they do not satisfy the
heightened threshold required under Section 37. The legislature has
consciously raised the bar in commercial quantity cases, and the Court
cannot dilute it on equitable grounds alone.
23. On a cumulative appraisal of the facts, the nature of the
accusation, the quantum of contraband involved, and the statutory
restrictions, this Court is unable to record the satisfaction contemplated
under Section 37(1)(b)(ii) of the NDPS Act.
ORDER
In view of the foregoing discussion, and for the reasons recorded
hereinabove, this Court finds that the present application does not meet
the stringent requirements of Section 37(1)(b)(ii) of the NDPS Act. The
grounds urged on behalf of the Applicant, namely prolonged custody,
filing of the charge sheet, absence of antecedents, and parity, are
insufficient to override the statutory embargo in cases involving a
commercial quantity of narcotic substances.
Accordingly, the Second Bail Application No. 193 of 2025 filed
by the Applicant Shanu S/o Rahees Ahmad is hereby rejected.
(Ashish Naithani J.)
Dated:12.08.2025
NR/
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2nd Bail Application No. 193 of 2025, Shanu Vs State of Uttarakhand
Ashish Naithani J.
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