Himachal Pradesh High Court
Inder Singh vs State Of Himachal Pradesh on 13 December, 2024
( 2024:HHC:14450 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1837 of 2024
Reserved on: 29.11.2024
Date of Decision: 13.12.2024
Inder Singh …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Ms. Aishwarya Chauhan & Mr. Ajay
Chauhan, Advocates.
For the Respondent : Mr Lokender Kutlehria, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail. It has been asserted that the petitioner was
arrested vide FIR No. 17 of 2024, dated 07.03.2024, registered for
the commission of offences punishable under Sections 22 and 29
of the Narcotic Drugs and Psychotropic Substances Act (in short
‘NDPS Act’) at Police Station Renuka Ji, District Sirmaur, H.P. As
per the prosecution, petitioner – Inder Singh and Arun Dhiman
were riding a Scooty from Nahan towards Dadahu. They were
stopped at Bayari, and capsules of SPASMO PROXIVON PLUS 6
strips and SPAS PARIVON PLUS 18 strips were found in their
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
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possession during the search. The police have completed the
investigation and filed the charge sheet before the Court. No
recovery is to be effected from the petitioner. He will abide by all
the terms and conditions, which the Court may impose. Hence,
the present petition.
2. The State has filed a status report asserting that the
police party was on checking duty on 07.03.2024 at Bayari. They
stopped a Scooty bearing registration No. HP18C-5005 coming
from Nahan. The driver showed his driving license on his mobile
phone. He revealed his name as Inder Singh (the present
petitioner). The insurance of Scotty had expired. The police
issued a traffic infringement report. The pillion rider revealed
his name as Arun Dhiman. Police asked the driver to unlock the
dickey of the Scooty, on which both the riders became
frightened. The police checked the Scooty in the presence of two
independent witnesses and found a plastic bag containing 144
capsules of SPASMO-PROXYVON PLUS and 432 Capsules of
SPAS-PARVION PLUS. Both of these drugs contained
TRAMADOL. This is a prohibited salt. A license/permit was
demanded from the riders for possessing the drugs, but they
could not produce any license/permit. Hence, the police seized
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the drugs from Scooty after completing codal formalities. Inder
Singh revealed on inquiry that he is a drug addict and used to
purchase the capsules from Arun Dhiman. Arun Dhiman
revealed that he had purchased the capsules from Bhupender
Sharma, owner of a Kirana Store. The shop of Bhupinder Sharma
was searched, and the pieces of a cardboard box of TRAMADOL
were found in the plastic box beneath the counter. Arun Dhiman
and Bhupinder Sharma were in touch with each other. The
location of Bhupinder Sharma and Arun Dhiman was found in
Kala Amb (Haryana) between 1 pm and 1:30 pm. The capsules
were sent to FSL, and as per the report of the analyst, they
contained TRAMADOL weighing 337.392 gms. Challan was
presented before the Court on 21.05.2024, and the matter was
listed for the prosecution evidence on 22.11.2024. Hence, the
status report.
3. I have heard Ms. Aishwarya Chauhan & Mr Ajay
Chauhan, learned counsel for the petitioner and Mr Lokender
Kutlehria, learned Additional Advocate General for the
respondent/State.
4. Ms Aishwarya Chauhan, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
4
( 2024:HHC:14450 )
falsely implicated in the present case. As per the status report,
the co-accused, Arun Dhiman, was in touch with Bhupinder
Sharma. He had purchased the capsules from Bhupinder
Sharma, and their location was found in Kama Amb (Haryana).
There is no material to connect the petitioner with the
commission of a crime. Therefore, she 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
is the owner of Scooty from which the recovery was effected. The
statement made by Arun Dhiman is not admissible and was used
by the prosecution to trace the person, who had sold the
capsules. The quantity of the TRAMADOL is commercial, and the
petitioner is unable to satisfy the twin conditions laid down
under Section 37 of the ND&PS Act; therefore, 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.
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal
5
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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, 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
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.
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
6
( 2024:HHC:14450 )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. 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
7
( 2024:HHC:14450 )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:
’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
8
( 2024:HHC:14450 )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
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)
9
( 2024:HHC:14450 )
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
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
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8. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. Ms. Aishwarya Chauhan, learned counsel for the
petitioner, relied upon the statement made by co-accused Arun
Dhiman during the investigation and submitted that Arun
Dhiman had contacted Bhupinder, he has purchased the
capsules, and the petitioner is not involved in the commission of
the offence. This submission is not acceptable. It was laid down
by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel
v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019
SCC OnLine SC 588 that a statement made by co-accused during
the investigation is hit by Section 162 of Cr.P.C. and cannot be
used as a piece of evidence. Further, the confession made by the
co-accused is inadmissible because of Section 25 of the Indian
Evidence Act. It was observed at page 568: –
44. Such a person, viz., the person who is named in the
FIR, and therefore, the accused in the eye of the law, can
indeed be questioned, and the statement is taken by the
police officer. A confession that is made to a police officer
would be inadmissible having regard to Section 25 of the
Evidence Act. A confession, which is vitiated under
Section 24 of the Evidence Act, would also be
inadmissible. A confession, unless it fulfils the test laid
down in Pakala Narayana Swami [Pakala Narayana
Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39)
66 IA 66: AIR 1939 PC 47] and as accepted by this Court,
11
( 2024:HHC:14450 )may still be used as an admission under Section 21 of the
Evidence Act. This, however, is subject to the bar of
admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains admission, the
statement being one under Section 161, it would
immediately attract the bar under Section 162 CrPC.”
10. Similarly, it was held in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC
271 that a confession made by a co-accused cannot be taken as a
substantive piece of evidence against another co-accused and
can only be utilised to lend assurance to the other evidence. The
Hon’ble Supreme Court subsequently held in Tofan Singh Versus
State of Tamil Nadu 2021 (4) SCC 1 that a confession made to the
police officer during the investigation is hit by Section 25 of the
Indian Evidence Act and is not saved by the provisions of Section
67 of the NDPS Act. Therefore, no advantage can be derived by
the petitioner from the confessional statement made by the co-
accused.
11. Even otherwise, the statement made by Arun Dhiman
shows that the petitioner had asked him for the capsules, and he
had gone to Haryana at the instance of the petitioner. Therefore,
this statement, even if admissible, does not absolve the
petitioner of the commission of the crime, and the petitioner
12
( 2024:HHC:14450 )
cannot derive any advantage from the statement of Arun
Dhiman.
12. The status report shows that the petitioner is the
owner of the Scooty from which the capsules were recovered. He
was driving the Scooty when it was intercepted by the police.
Hon’ble Supreme Court held in Madan Lal v. State of H.P., (2003)
7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLine SC 874, that the
persons travelling in a vehicle knowing each other would be
presumed to be in conscious possession and the burden shifts
upon them that their possession was not conscious. It was
observed at page 471:
“18. The other plea which was emphasised was the
alleged statement of accused Goyal Nath that he alone
was in possession of the contraband bags. The plea
centres around a statement of search witness PW 1,
who stated that Goyal Nath told him that the
contraband articles belonged to him. The statement
was made totally out of context, and no credence can
at all be attached to the statement. The accused, Goyal
Nath, in his examination under Section 313 of the Code
of Criminal Procedure, 1973 (in short, “the Code”),
did not state that he alone was in possession of the
contraband articles. On the contrary, he stated that he
did not know anything about the alleged seizure.
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
13
( 2024:HHC:14450 )in a vehicle, and as noted by the trial court, they were
known to 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 a conscious
possession.
21. It is highlighted that unless the possession was
coupled 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 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
particular fact. It is a state of mind which is deliberate
or intended.
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 control.
25. The word “possession” means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561:
14
( 2024:HHC:14450 )
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 Sullivan 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 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.
28. In fact, the evidence clearly establishes that they
knew about the transportation of charas, and each had
a role in the transportation and possession with
conscious knowledge of what they were doing. The
accused-appellant, Manjit Singh, does not stand on a
different footing merely because he was the driver of
the vehicle. The logic applicable to other accused-
appellants also applies to Manjit Singh.”
13. In the present case, the status report shows that the
petitioner was the owner of the Scooty, he had the key of the
dickey, and he would be in possession of all the articles found in
it; hence, his plea that he was not found in possession of the
capsules cannot be accepted.
15
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14. The police had recovered the commercial quantity of
TRAMADOL capsules, and the rigours of Section 37 of the
ND&PS Act apply to the present case. 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 cognisable 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
cognisable;
(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 a
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 cognisable 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
cognisable;
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(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.”
15. 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) offences involving commercial quantity.
17
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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.”
16. 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
large stake and illegal profit involved. This Court,
18
( 2024:HHC:14450 )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
ordering the release of the respondent
accused on bail. Instead of attempting to
take a holistic view of the harmful socio-
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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.”
20
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17. 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
to give an exact definition of the word
“reasonable”.
21
( 2024:HHC:14450 )
‘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)
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.
22
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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.”
18. 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 cognisable 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
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
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(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.
19. 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.”
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
24
( 2024:HHC:14450 )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.
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
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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.” 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.”
20. In the present case, the commercial quantity of
TRAMADOL capsules was recovered from the dickey of his
Scooty being driven by him, and it cannot be said that there are
no reasonable grounds to connect him with the commission of
the offence. Further, there is no material on record to show that
the petitioner is not likely to commit a similar offence if he is
26
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released on bail. Hence, he has failed to satisfy the rigours of
Section 37 of the NDPS Act.
21. No other point was urged.
22. In view of the above, the present petition fails, and
the same is dismissed. The observations made hereinabove are
regarding the disposal of this petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
13th December, 2024
(Shamsh Tabrez)