Himachal Pradesh High Court
Reserved On: 22.11.2024 vs State Of Himachal Pradesh on 29 November, 2024
2024:HHC:12721
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2495 of 2024
Reserved on: 22.11.2024
Date of Decision: 29.11.2024.
Keshav Ram ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Yashveer Singh Rathore,
Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional
Advocate General, for the
respondent-State.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
regular bail. It has been asserted that the petitioner was arrested
by the police for the commission of offences punishable under
Sections 20 and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (referred to as ‘NDPS Act’), vide FIR No.
231 of 2023, dated 4.8.2023, registered at Police Station Sadar
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
Kullu, District Kullu, H.P. The allegations against the petitioner
are baseless and imaginary. According to the prosecution, the
charas, weighing 1.22 kilograms, was recovered by the police
from the bag carried by the co-accused. The petitioner has no
connection to this recovery. The petitioner is a respectable
member of the society. The investigation is complete and a
charge sheet has been filed in the Court. There is a discrepancy
in the weight of the contraband; 1 kg 3 grams of charas was
found according to the SFSL report, whereas the prosecution
claims that 1 kg. 22 grams of charas was recovered on the spot.
The petitioner has been in custody for over a year and his trial is
likely to take some time. Hence, the present petition.
2. The petition is opposed by filing a status report
asserting that the police party was on patrolling duty on
4.8.2023. When they reached near Bramh Ganga Hydro Project,
Shangna, at 5.55 PM, two persons came towards the police. One
person took out a red polythene carry bag from his jacket and
threw it towards the right side of the road. Both persons started
running towards Barsheni. The police apprehended both
persons. Narinder Singh, an independent person, was brought to
the spot. One of the persons revealed his name as Rafi
3
Mohammad, and another person revealed his name as Keshav
Ram (the present petitioner). The carry bag was checked in the
presence of the witnesses and it was found to be containing 1 kg.
22 grams of cannabis with carry bag, wrapper and poly zipper.
The police seized the charas and arrested the persons. The
charas was sent to SFSL and as per the report of analysis, the
exhibit was an extract of cannabis and a sample of charas. The
challan has been prepared and filed before the Court on
6.10.2023. The prosecution has cited 15 witnesses, out of whom
three have been examined and now the matter is listed on
6.1.2025 for recording the statements of prosecution witnesses
at Serial No. 5 and 8.
3. I have heard Mr. Yashveer Singh Rathore, learned
counsel for the petitioner and Mr. Lokender Kutlehria, learned
Additional Advocate General, for the respondent-State.
4. Mr. Yashveer Singh Rathore, learned counsel for
the/petitioner, submitted that the petitioner is innocent and he
was falsely implicated. The prosecution has cited 15 witnesses
and the trial is likely to take considerable time for its conclusion.
There is a discrepancy in the weight of the charas. He relied
4
upon the judgments of Hon’ble Supreme Court in Riyajul Mondal
Vs. State of West Bengal MANU/SCOR/79605/2024, Mithun SK and
others Vs. State of West Bengal MANU/SCOR/71191/2024 and Apa
Debanath Vs. State of West Bengal MANU/SCOR/82700/2024 in
support of his submission. Hence, he prayed that the present
petition be allowed and the petitioner be released on bail.
5. Mr. Lokender Kutlehria, learned Additional Advocate
General for the respondent-State submitted that the petitioner
had abetted the commission of an offence punishable under
Section 20(b)(ii)(c) of ND&PS Act, which is a commercial
quantity. The rigours of Section 37 of the ND&PS Act apply to the
present case. The petitioner is unable to satisfy the twin
conditions laid down under Section 37 of the ND&PS Act.
Learned counsel for the petitioner was not present when the
witnesses were produced by the prosecution and they could not
be examined. The petitioner/accused is responsible for the delay
and he cannot take advantage of it. Hence, he prayed that the
present petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
5
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal
Damuji Meher, 2024 SCC OnLine SC 2271, 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, and flight risk. 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
Pradesh (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.
6
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 the 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)
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
“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
(viii) danger, of course, of justice being thwarted by
grant of bail.’
8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC
118, this Court opined as under:
8
’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
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
9
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.
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
10while 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)
8. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. The status report shows that the police had seen the
petitioner and another person coming towards them. Another
person took out a polythene packet and threw it. The petitioner
and another person started running away. This shows that both
persons were acting in concert, therefore, prima facie, he is
involved in the commission of an offence punishable under
Section 20(b)(ii)(c) read with Section 29 of the ND&PS Act and
the plea taken by the petitioner that he is not involved in the
commission of the crime is not acceptable.
10. The SFSL report shows that the total weight of the
exhibit with polythene wrapper was found to be 1.010 kg, and the
actual weight of the exhibit was found to be 1.003 kilograms. The
11
status report shows that the total weight of the charas, along
with the packet, was found to be 1.022 kg; thus, there is a
difference of only 12 grams, which can occur due to the
difference in accuracy of instruments used on the spot and in the
laboratory. Therefore, a discrepancy of 12 grams is not sufficient
to doubt the prosecution case.
11. The status report shows that the petitioner had
abetted the possession of 1.022 kg of Charas, which is a
commercial quantity; hence, the rigours of Section 37 of the
NDPS 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 follows:
“37. Offences are 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, section 24, or section
27A and also for offences involving commercial
12quantity 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:
(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.
13
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 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
vulnerable; it causes deleterious effects and a
deadly impact on the society; they are a hazard to
the society; even if they are released temporarily, in
all probability, they would continue their nefarious
activities of trafficking and/or dealing in
intoxicants clandestinely. The reason may be the
14large 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 the society as a
whole, Parliament, in its wisdom, has made
effective provisions by introducing Act 81 of
1985 specifying mandatory minimum
imprisonment and fine.
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the
person accused of offences under the NDPS Act
should not be released on bail during trial unless
the mandatory conditions provided in Section 37,
namely,
(i) there are reasonable grounds for
believing that the accused is not guilty of
such offence; and
(ii) that he is not likely to commit any
offence while on bail are satisfied. The High
Court has not given any justifiable reason for
not abiding by the aforesaid mandate while
15ordering 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
commission of an offence under the Act unless twin
conditions are satisfied. The first condition is that the
prosecution must be given an opportunity to oppose the
application, and the second is that the Court must be
satisfied that there are reasonable grounds for believing
that he is not guilty of such an offence. If either of these
two conditions is not satisfied, the ban for granting bail
operates.
21. The expression “reasonable grounds” means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires
the existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on
hand, the High Court seems to have completely
overlooked the underlying object of Section 37 that in
addition to the limitations provided under the CrPC, or
any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for.”
16
15. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237 wherein it was observed at page 110:
“21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19, 24
or 27-A and also for offences involving a commercial
quantity are:
(i) The Prosecutor must be given an opportunity to
oppose the application for bail; and
(ii) There must exist “reasonable grounds to
believe” that (a) the person is not guilty of such an
offence, and (b) he is not likely to commit any
offence while on bail.
22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person
is not guilty of the offence. Interpreting the standard of
“reasonable grounds to believe”, a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798: (2007) 3 SCC (Cri) 505],
held that : (SCC pp. 801-02, paras 7-8 & 10-11)
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means
something more than prima facie grounds. It connotes
substantial probable causes for believing that the
accused is not guilty of the offence charged, and this
reasonable belief contemplated, in turn, points to the
existence of such facts and circumstances as are
sufficient in themselves to justify the recording of
satisfaction that the accused is not guilty of the offence
charged.
8. The word “reasonable” has in law the prima facie
meaning of reasonable in regard to those
circumstances of which the actor, called on to act
reasonably, knows or ought to know. It is difficult
17
to give an exact definition of the word
“reasonable”.
‘7. … Stroud’s Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an
exact definition of the word “reasonable”. Reason
varies in its conclusions according to the
idiosyncrasy of the individual and the times and
circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds now
like the jingling of a child’s toy.’
[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504,
para 7 and Gujarat Water Supply & Sewerage
Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat
Water Supply & Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd., (1989) 1 SCC 532] ]
***
10. The word “reasonable” signifies “in accordance
with reason”. In the ultimate analysis, it is a
question of fact, whether a particular act is
reasonable or not depends on the circumstances in
a given situation. (See Municipal Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]
11. The court, while considering the application for
bail with reference to Section 37 of the Act, is not
called upon to record a finding of not guilty. It is for
the limited purpose essentially confined to the
question of releasing the accused on bail that the
court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty
and records its satisfaction about the existence of
such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of
acquittal and recording a finding of not guilty.”
(emphasis supplied)
18
23. Based on the above precedent, the test which the High
Court and this Court are required to apply while granting
bail is whether there are reasonable grounds to believe
that the accused has not committed an offence and
whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the
NDPS Act and in order to curb the menace of drug
trafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed.”
16. It was held in Union of India v. Ajay Kumar Singh, 2023
SCC OnLine SC 346 that the bail cannot be granted without
complying with the requirement of Section 37 of the NDPS Act. It
was observed:
4. This apart, it is noticed that the High Court, in passing
the impugned order of bail, had lost sight of Section 37 of
the NDPS Act, which, inter alia, provides that no person
accused of an offence involving commercial quantity shall
be released on bail unless the twin conditions laid down
therein are satisfied, namely, (i) the public prosecutor has
been given an opportunity to oppose the bail application;
and (ii) the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
offence and that he is not likely to commit any such
offence while on bail.
15. For the sake of convenience Section 37(1) is
reproduced hereinbelow:–
“37. Offences to be cognizable and nonbailable.-
(1) Notwithstanding anything contained in
the Criminal Procedure Code, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall
be cognisable;
(b) no person accused of an offence punishable
for 2[offences under section 19 or section 24 or
19section 27A and also for offences involving
commercial quantity] shall be released on bail or
on his own bond unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there
are reasonable grounds for believing that he
is not guilty of such offence and that he is not
likely to commit any offence while on bail.”
16. In view of the above provisions, it is implicit that no
person accused of an offence involving trade in a
commercial quantity of narcotics is liable to be released
on bail unless the court is satisfied that there are
reasonable grounds for believing that he is not guilty of
such an offence and that he is not likely to commit any
offence while on bail.
17. It was held in State of Meghalaya v. Lalrintluanga
Sailo, 2024 SCC OnLine SC 1751 that the grant of bail without
considering Section 37 of the NDPS Act is impermissible. It was
observed:
“5. There cannot be any doubt with respect to the
position that in cases involving the commercial quantity
of narcotic drugs or psychotropic substances while
considering the application of bail; the Court is bound to
ensure the satisfaction of conditions under Section 37(1)
(b)(ii) of the NDPS Act. The said provision reads thus:–
“37(1)(b)(ii)- where the Public Prosecutor opposes the
application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence
and that he is not likely to commit any offence while on
bail.”
20
6. While considering the cases under the NDPS Act, one
cannot be oblivious of the objects and reasons for
bringing the said enactment after repealing the then
existing laws relating to Narcotic drugs. The object and
reasons given in the acts itself reads thus:–
“An act to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the
control and regulation of operations relating to narcotic
drugs and psychotropic substances, to provide for the
forfeiture of property derived from, or used in, illicit traffic
in narcotic drugs and psychotropic substances, to
implement the provisions of the International Convention
on Narcotic Drugs and Psychotropic Substances and for
matters connected therewith.”
In the decision in Collector of Customs, New
Delhi v. Ahmadalieva Nodira (2004) 3 SCC 549, the three-
judge bench of this Court considered the provisions under
Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with
regard to the expression “reasonable grounds” used
therein. This Court held that it means something more
than the prima facie grounds and that it contemplates
substantial and probable causes for believing that the
accused is not guilty of the alleged offence. Furthermore,
it was held that the reasonable belief contemplated in the
provision would require the existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence.
As relates to the twin conditions under Section 37(1)(b)
(ii) of the NDPS Act, viz., that, firstly, there are
reasonable grounds for believing that the accused is not
guilty of such offence and, secondly, he is not likely to
commit any offence while on bail it was held therein that
they are cumulative and not alternative. Satisfaction of
the existence of those twin conditions had to be based on
the ‘reasonable grounds’, as referred to above.
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7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC
122, after reiterating the broad parameters laid down by
this Court to be followed while considering an application
for bail moved by an accused involved in offences under
the NDPS Act, in paragraph 18 thereof this Court held that
the scheme of Section 37 of the NDPS Act would reveal
that the exercise of power to grant bail in such cases is
not only subject to the limitations contained under
Section 439 of the Code of Criminal Procedure, but also
subject to the limitation placed by Section 37(1)(b)
(ii), NDPS Act. Further, it was held that in case one of the
two conditions thereunder is not satisfied, the ban for
granting bail would operate.
8. Thus, the provisions under Section 37(1)(b)(ii) of
the NDPS Act and the decisions referred supra reveal the
consistent view of this Court that while considering the
application for bail made by an accused involved in an
offence under NDPS Act a liberal approach ignoring the
mandate under Section 37 of the NDPS Act is
impermissible. Recording a finding mandated under
Section 37 of the NDPS Act, which is a sine qua non for
granting bail to an accused under the NDPS Act, cannot be
avoided while passing orders on such applications.”
18. In the present case, the petitioner had abetted the
possession of a commercial quantity of charas and it cannot be
said that there are no reasonable grounds to believe that the
petitioner had not committed the offence or that he would not
commit the offence in case of release on bail. Thus, he has not
satisfied the twin conditions of Section 37 of ND&PS Act and he
is not entitled to the concession of bail.
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19. It was submitted that there is a delay and the
petitioner is entitled to bail on this ground. This is not
acceptable. Copies of the order sheets show that the witness, HC
Krishan Kant was present on 26.6.2024 but was not examined at
the request of learned counsel for the accused. Thus, the delay
occurred due to the non-examination of the witness by the
accused and there is a force in the submission of Mr. Lokender
Kutlehria, learned Additional Advocate General for the
respondent-State that the petitioner cannot take advantage of
his own wrong of not examining the witness. Since the
petitioner is at fault, in the present case, therefore, the
judgments cited on his behalf do not apply to the present case.
20. Consequently, the petitioner is not entitled to the
concession of bail. Hence, the present petition fails and the same
is dismissed.
21. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
29th November, 2024
(Chander)