Khim Kumari Dharti Magar Budha Vs State of Hp

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No. 1542 of 2025 Reserved on: 04.08.2025 Date of Decision: 08.08.2025

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Khim Kumari Dharti Magar Budha ...Petitioner Versus State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No. For the Petitioner : Mr. Rajiv Rai, Advocate. For the Respondent /State : Mr. Jitender K. Sharma, Additional Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail in FIR No. 194 of 2024, dated 26.11.2024, registered for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the NDPS Act’) at Police Station Ghumarwin, District Bilaspur, H.P.

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It has been asserted that, as per the prosecution, the Police checked a vehicle bearing registration No. DL-5CJ-3249

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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and found 6.805 kgs of charas. The petitioner was travelling in the vehicle with the co-accused. The police filed a charge sheet on 24.02.2025. The prosecution has cited 17 witnesses, and the progress of the trial is likely to take considerable time. The petitioner is illiterate and has no connection with the car. She did not know that any contraband was being carried in the vehicle. She had taken a lift from the accused Dhan Raj. She has no criminal history. She would abide by the terms and conditions which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 26.11.2024. They were checking the vehicles near Malyavar Link Road. A car bearing registration No. DL-5CJ-3249 came to the spot at 10:45 am. The driver appeared to be frightened after seeing the police. The passenger in the rear seat tried to conceal the bag beneath her feet. The police associated Chaman Chandel and Het Ram as witnesses. The driver identified himself as Dhan Raj. The passenger on the front seat identified herself as Sanu Maya Tamad, and the passenger on the rear seat identified herself as Khim Kumari Dharti (the present petitioner). The police checked the backpack kept near the petitioner’s feet, and recovered 6 kg

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805 grams of cannabis kept in 11 packets. The police seized the cannabis and arrested the occupants of the vehicle. The cannabis was sent to the SFSL, Junga, for analysis, and as per the result of the analysis, it was found to be a sample of charas. The police filed the charge-sheet on 24.03.2025, and the matter is now listed for recording of the statements of prosecution witnesses on 22.08.2025. Hence, the status report.

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I have heard Mr. Rajiv Rai, learned counsel for the petitioner and Mr. Jatinder K. Sharma, learned Deputy Advocate General for the respondent/State.

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Mr. Rajiv Rai, learned counsel for the petitioner, submitted that the petitioner is innocent and she was falsely implicated. She had taken a lift and had no knowledge about the charas being transported in the vehicle. She is entitled to special consideration being a woman. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgments of this Court in Sapna v. State of Himachal Pradesh [2022: HH:4596] and Amar Nath v. State of Himachal Pradesh [2025:HHC:22851], in support of his submission.

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Mr. Jatinder K. Sharma, learned Additional Advocate

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General, submitted that the petitioner was found in possession of a commercial quantity of charas and the rigours of Section 37 of the ND&PS Act apply to the present case. The petitioner has not satisfied the twin conditions laid down in Section 37 of the NDPS Act. Her permanent address has also not been verified, and the petitioner is likely to abscond in case of her release on bail. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed at page 783: -

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“Relevant parameters for granting bail

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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

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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] . ]

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This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: -

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“12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

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“14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under

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Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied)

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13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: —

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“15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied)

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14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed:

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“ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or

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apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied)

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This position was reiterated in Shabeen Ahmed versus

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State of U.P., 2025 SCC Online SC 479.

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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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A perusal of the status report shows that the petitioner was travelling in the vehicle from which 6.805 Kgs 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:

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“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 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

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they travelled together from the same destination in a vehicle which was not a public vehicle.

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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.

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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.

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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.

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The word “conscious” means awareness of a particular fact. It is a state of mind which is deliberate or intended.

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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.

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The word “possession” means the legal right to possession (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 Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966: (1976) 2 WLR 361 (QBD)] .)

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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.

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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.”

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Therefore, the petitioner was prima facie found in possession of 6.805 kilograms of charas.

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The police had recovered 6.805 Kgs of charas, which is a commercial quantity; therefore, the rigours of Section 37 of the NDPS Act apply to the present case. Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the

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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:

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“37. Offences to be cognizable and non-bailable. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

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(a) every offence punishable under this Act shall be cognizable;

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(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A,

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and also for offences involving commercial quantity, shall be released on bail or on his own bond unless–

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(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 an offence and that he is not likely to commit any offence while on bail.

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(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.”

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This Section was interpreted by the Hon'ble Supreme

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Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC

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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:

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“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 :

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(1) In the case of a person accused of an offence punishable under Section 19,

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(2) Under Section 24,

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(3) Under Section 27A and

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(4) Of offences involving commercial quantity.

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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.

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(1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such an offence;

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(2) that person is not likely to commit any offence while on bail.”

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This position was reiterated in State of Kerala Versus Rajesh, AIR 2020 SC 721, wherein it was held:

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“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: -

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"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

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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:

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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.

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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,

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(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

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(ii) that he is not likely to commit any offence while on bail are satisfied. The

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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."

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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.

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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

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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.”

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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:

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“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:

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( i ) The Prosecutor must be given an opportunity to oppose the application for bail; and

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(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.

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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)

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“ 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.

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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”.

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‘ 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.’

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[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 ]]

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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 ]

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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

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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.”

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(emphasis supplied)

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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.”

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This position was reiterated in Narcotics Control Bureau

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v. Mohit Aggarwal, 2022 SCC OnLine SC 891, wherein it was observed:

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“11. It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Criminal Procedure Code, 1973, to be kept in mind, but the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in subsection (1) of Section 37 are that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must

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be satisfied that the accused person is unlikely to commit any offence while on bail.

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12. The expression “ reasonable grounds ” has come up for discussion in several rulings of this Court. In “ Collector of Customs, New Delhi v. Ahmadalieva Nodira” (2004) 3 SCC 549 , a decision rendered by a Three Judges Bench of this Court, it has been held thus: —

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“7. The limitations on granting bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which have relevance so far as the present accused-respondent is concerned, are the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires 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.” [emphasis added]

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13. The expression “reasonable ground” came up for discussion in “ State of Kerala v. Rajesh” (2020) 12 SCC 122, and this Court has observed as below:

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“20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires 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

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Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” [emphasis added]

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14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dovetailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

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We may clarify that at the stage of examining an application for bail in the context of Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and that he is unlikely to commit an offence under the Act while on bail.

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It was submitted that the petitioner is entitled to a special concession being a woman. This submission cannot be accepted. The petitioner is involved in the commission of an offence punishable under Section 20 of the NDPS Act, which provides special provisions for granting bail, in case of a

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commercial quantity. Hence, the provisions of Section 37 of the Cr.PC will override the provisions of Section 437 of Cr.PC and recourse cannot be had to Section 437 of Cr.PC. It was laid down by the Hon’ble Supreme Court in Narcotics Control Bureau v. Kishan Lal , (1991) 1 SCC 705: 1991 SCC (Cri) 265 that the provisions of Section 37 of the NDPS Act override the provisions of Section 439 of the CrPC. It was observed at page 708:

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“6. Section 37, as amended, starts with a non-obstante clause stating that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. The NDPS Act is a special enactment, and as already noted, it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of CrPC regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439 CrPC are not subject to the limitation mentioned under Section 37 of NDPS Act. The non-obstante clause with which the section starts should be given its due meaning, and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439 CrPC and Section 37 of the NDPS Act, Section 37 prevails. In this context, Section 4 CrPC may be noted, which reads thus:

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“4. Trial of offences under the Penal Code, 1860 and other laws .— (1) All offences under the Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

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(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

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It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry, or otherwise dealing with such offences, the other powers under the CrPC should be subject to such special enactment. In interpreting the scope of such a statute, the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi v. Union of India [(1982) 3 SCC 140: 1982 SCC (Cri) 642 : (1983) 1 SCR 393], regarding the mode of interpretation, the Supreme Court observed as follows: (SCC p. 150, para 8)

¶149

“The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the wellrecognised canons of construction is that the legislature speaks its mind by use of correct expression, and unless there is any ambiguity in the language of the provision, the court should adopt literal construction if it does not lead to an absurdity.”

¶150

As already noted, Section 37 of the NDPS Act starts with a non-obstante clause stating that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently, the power to grant bail under any of the provisions of the CrPC should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.

¶151

¶152

Hence, the judgments in Amar Nath’s Case (supra) &

¶153

Sapna’s Case (supra) do not apply to the present case.

¶154

21

¶155

( 2025:HHC:26709 )

¶156

Since the petitioner has filed to satisfy the twin conditions laid down under Section 37 of Cr.PC, therefore, she is not entitled to the concession of bail.

¶157

No other point was urged.

¶158

In view of the above, the present petition fails and the same is dismissed.

¶159

The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case.

¶160

The present petition stands disposed of, and so are the

¶161

pending miscellaneous applications, if any.

¶162

(Rakesh Kainthla) Judge

¶163

08^th August 2025 (Shamsh Tabrez)

Khim Kumari Dharti Magar Budha v. State of Hp

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Khim Kumari Dharti Magar Budha v. State of Hp

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