Dismissed¶21

Jai Bahadur singh v. State of Hp

NDPS Act – Regular bail

Himachal Pradesh HC18 Nov 2025CRMPM/2495/2025

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Case brief

AI extract

What is this about?

Himachal Pradesh High Court, Shimla; Cr. MP(M) No. 2495 of 2025; Rakesh Kainthla, J.; decision 18.11.2025 (reserved 7.11.2025); regular bail under NDPS Act; FIR No. 69 of 2024, PS Kandaghat, District Solan; Sections 18 and 29 NDPS Act; 4 kg 12 g opium commercial quantity; Section 37 twin conditions not satisfied; Sections 35 and 54 presumptions; Pinki bail parameters; Niyazuddin; State of Kerala v. Rajesh; Mohd. Nawaz Khan; Ajay Kumar Singh; Lalrintluanga Sailo; Vipin K Varghese (long incarceration); bail petition dismissed.

What did the court decide?

On the status report, the petitioner was prima facie found in possession of 4 kilograms 12 grams of opium recovered from the bag carried by him, which is a commercial quantity. ¶10

Jai Bahadur singh Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶21

Issue for consideration

Whether the petitioner, arraigned for offences under Sections 18 and 29 of the NDPS Act arising out of FIR No. 69 of 2024 involving recovery of 4 kilograms 12 grams of opium (a commercial quantity), is entitled to regular bail despite the embargo in Section 37 of the NDPS Act. +1 more

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Court's answer

On the status report, the petitioner was prima facie found in possession of 4 kilograms 12 grams of opium recovered from the bag carried by him, which is a commercial quantity.

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Ratio / Principle

The prosecution has collected sufficient material to prima facie connect the petitioner with the crime; there is nothing on record to show he would not indulge in crime if released; therefore he has not satisfied the twin conditions of Section 37 of the ND&PS Act and cannot be released on bail.

¶18

Key takeaways

The plea of ignorance of the contents of the bag was rejected: prima facie the presumptions under Sections 35 and 54 of the NDPS Act apply, the petitioner is presumed to have possessed the opium with requisite intent, the burden to rebut lies on him, and nothing on record rebuts the presumption at this stage.ratio¶19
The observations made in the order are confined to the disposal of the bail petition and shall have no bearing on the merits of the case.obiter¶22

Detailed headnote1 paragraphs

NDPS Act — Regular bail — Recovery of 4 kilograms 12 grams of opium from petitioner's backpack; commercial quantity — Rigour of Section 37 NDPS Act: twin conditions (Public Prosecutor heard; reasonable grounds to believe accused not guilty and not likely to offend while on bail) not satisfied — Nothing on record to show petitioner would not reoffend — Ignorance-of-contents plea rejected: presumptions under Sections 35 and 54 NDPS Act attracted prima facie; burden on accused unrebutted — Bail parameters from Pinki v. State of U.P. (2025) 7 SCC 314 and Section 37 rulings (Niyazuddin (2018) 13 SCC 738; State of Kerala v. Rajesh AIR 2020 SC 721; Mohd. Nawaz Khan (2021) 10 SCC 100; Ajay Kumar Singh 2023 SCC OnLine SC 346; Lalrintluanga Sailo 2024 SCC OnLine SC 1751; Vipin K Varghese 2025 INSC 1316 — long incarceration no ground absent twin conditions) applied — Petition dismissed; observations confined to bail stage.

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2025:HHC:38822

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No. 2495 of 2025 Reserved on: 7.11.2025 Date of Decision: 18.11.2025.

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Jai Bahadur Singh ...Petitioner

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Versus

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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.

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For the Petitioner	: Mr Hemant Thakur, Advocate.
For the Respondent/State	: Mr Ajit Sharma, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has 昀椀led the present petition for

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seeking regular bail in FIR No. 69 of 2024, dated 6.8.2024, registered at Police Station, Kandaghat, District Solan, H.P., for the commission of o昀昀ences punishable under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

¶13

It has been asserted that, as per the prosecution, the

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police had recovered 4 kilograms 12 grams of opium from the

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

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petitioner’s possession. The police arrested the petitioner on 6.8.2024. The petitioner is innocent, and he was falsely implicated. He would abide by the terms and conditions that the Court may impose. Hence, the petition.

¶20

The petition is opposed by 昀椀ling a status report asserting that the police were on patrolling duty on 06.08.2024. They received a secret information at 10:30 am that one person was transporting a huge quantity of opium. The information was credible. The police reduced it to writing and sent it to the Supervisory O昀케cer. The police apprehended one person, who identi昀椀ed himself as Jai Bahadur (the present petitioner), in the presence of independent witnesses. He opted to be searched by a Gazetted O昀케cer. A search of his backpack was conducted, and 4.12 Kgs. of opium was found in it. The Police seized the opium and arrested him. He revealed during the interrogation that he and Pradeep Chand had brought opium from Nepal. The police analysed the call details record and found that the petitioner and co-accused Pradeep Chand had stayed at Kullu with e昀昀ect from 10.07.2024 till 28.07.2024. Pradeep Chand called the petitioner every hour on the date of the incident to know about his destination. Pradeep Chand switched o昀昀 his mobile phone after

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the petitioner was arrested. Police sent the opium to FSL. It was con昀椀rmed to be opium after analysis. The police conducted the investigation and 昀椀led a charge-sheet before the learned Special Judge, Solan. The matter was listed for consideration of charge on 6.11.2025; hence, the status report.

¶24

I have heard Mr Hemant Thakur, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent-State.

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Mr Hemant Sharma, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. As per the status report, the petitioner was asked by the co-accused to transport a packet. The petitioner was not aware of the fact that the packet contained opium. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner was found in possession of a commercial quantity of opium. The rigours of Section 37 of the NDPS Act apply to the present case, and the petitioner has not satis昀椀ed the twin conditions laid

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down under Section 37 of the NDPS Act. Therefore, 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 Pinki v. State of U.P., (2025) 7 SCC

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314: 2025 SCC OnLine SC 781, wherein it was observed at page

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380: -

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( i ) Broad principles for the grant of bail

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56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115 , Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9)

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“ 7 . It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be liable, if convicted or a conviction is con昀椀rmed, also bears upon the issue.

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8 . Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being . [ Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

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9 . Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting

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the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to 昀椀nd whether he has a bad record, particularly a record which suggests that he is likely to commit serious o昀昀ences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to in昀氀ict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance .” (emphasis supplied)

¶42

57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674 , this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8)

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“ 8 . The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge .” (emphasis supplied)

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58. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688 , speaking

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through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3)

¶48

“ 3 . Grant of bail, though being a discretionary order, calls for exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, and the same should always be coupled with other circumstances warranting the grant of bail. The nature of the o昀昀ence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter .” (emphasis supplied)

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59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977 , this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail.

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60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765 , this Court observed that where a High Court has granted bail mechanically, the said order would su昀昀er from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9)

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“ 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 :

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( i ) whether there is any prima facie or reasonable ground to believe that the accused had committed the o昀昀ence ;

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( ii ) nature and gravity of the accusation ;

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( iii ) severity of the punishment in the event of conviction ;

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( iv ) danger of the accused absconding or 昀氀eeing, if released on bail ;

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( v ) character, behaviour, means, position and standing of the accused ;

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( vi ) likelihood of the o昀昀ence being repeated ;

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( vii ) reasonable apprehension of the witnesses being in昀氀uenced; and

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( viii ) danger, of course, of justice being thwarted by grant of bail .” (emphasis supplied)

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62. One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170 , wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order ( Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857 ) of the High Court granting bail to the accused, observed as follows: ( Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170] ), SCC p. 511, para 35)

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“ 35 . While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while

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considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the o昀昀ence(s) alleged against an accused .” (emphasis supplied)

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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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The status report shows that the police searched the petitioner and recovered 4 kilograms 12 grams of opium from the bag being carried by the petitioner. Therefore, prima facie, the petitioner was found in possession of 4 kilograms 12 grams of opium, which is a commercial quantity.

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Section 37 of the NDPS Act provides that in an o昀昀ence involving a commercial quantity, the Court should be satis昀椀ed that the accused is not guilty of the commission of an o昀昀ence and is not likely to commit any o昀昀ence while on bail. It reads as follows:

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

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(a) every o昀昀ence punishable under this Act shall be cognisable.

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(b) no person accused of an o昀昀ence punishable for o昀昀ences under section 19, section 24, or section 27A and also for o昀昀ences involving commercial quantity, shall be released on bail or 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 satis昀椀ed that there are reasonable grounds for believing that he is not guilty of such an o昀昀ence and that he is not likely to commit any o昀昀ence while on bail.

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(2) The limitations on granting of bail speci昀椀ed 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 o昀昀ence and he is not likely to commit an o昀昀ence 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 o昀昀ences enumerated under the said Section. They are:

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(1) In the case of a person accused of an o昀昀ence 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) o昀昀ences involving a 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 o昀昀ences 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 satis昀椀ed 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 satis昀椀ed that there are reasonable grounds for believing that the person is not guilty of such an o昀昀ence;

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

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This position was reiterated in State of Kerala Versus

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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 o昀昀ences 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

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dealing in narcotic drugs are instrumental in causing death or in in昀氀icting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious e昀昀ects 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 tra昀케cking and/or dealing in intoxicants clandestinely. The reason may be the large stake and illegal pro昀椀t involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse e昀昀ect 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 tra昀케cking 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 e昀昀ectively control and eradicate this proliferating and booming devastating menace, causing deleterious e昀昀ects and a deadly impact on society as a whole, Parliament, in its wisdom, has made e昀昀ective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and 昀椀ne.

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To check the menace of dangerous drugs 昀氀ooding the market, Parliament has provided that the person accused of o昀昀ences under the NDPS Act should not be released on bail during trial unless

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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 o昀昀ence; and

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(ii) that he is not likely to commit any o昀昀ence while on bail are satis昀椀ed. The High Court has not given any justi昀椀able 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 socioeconomic consequences and health hazards which would accompany tra昀케cking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

¶106

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 o昀昀ence under the Act unless the two conditions are satis昀椀ed. The 昀椀rst condition is that the prosecution must be given an opportunity to oppose the application, and the second is that the Court must be satis昀椀ed that there are reasonable grounds for believing that he is not guilty of such an o昀昀ence. If either of these two conditions is not satis昀椀ed, the ban on 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 o昀昀ence. The

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reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are su昀케cient in themselves to justify satisfaction that the accused is not guilty of the alleged o昀昀ence. In the case at 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.”

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A similar view was taken in Union of India v. Mohd.

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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 o昀昀ences punishable under Sections 19, 24 or 27-A and also for o昀昀ences 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 o昀昀ence, and ( b ) he is not likely to commit any o昀昀ence 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 o昀昀ence. 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

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accused is not guilty of the o昀昀ence charged, and this reasonable belief contemplated, in turn, points to the existence of such facts and circumstances as are su昀케cient in themselves to justify the recording of satisfaction that the accused is not guilty of the o昀昀ence 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 di昀케cult to give an exact de昀椀nition 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 de昀椀nition of the word “reasonable”. Reason varies in its conclusions according to the idiosyncrasies 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” signi昀椀es “in accordance with reason”. In the ultimate analysis, it is a question of fact whether a particular act is reasonable or not, which 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

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called upon to record a 昀椀nding of not guilty. It is for the limited purpose essentially con昀椀ned 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 昀椀nding 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 o昀昀ence and whether he is likely to commit any o昀昀ence while on bail. Given the seriousness of o昀昀ences punishable under the NDPS Act and in order to curb the menace of drug tra昀케cking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

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It was held in Union of India v. Ajay Kumar Singh, 2023

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SCC OnLine SC 346, that bail cannot be granted without complying with the requirement of Section 37 of the NDPS Act. It was observed:

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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 o昀昀ence involving commercial quantity shall be released on bail unless the twin conditions laid down therein are satis昀椀ed, namely, (i) the public prosecutor has been given an opportunity to oppose the bail application; and (ii) the court is satis昀椀ed that there are reasonable grounds for believing that he is not guilty of such an o昀昀ence and that he is not likely to commit any such o昀昀ence while on bail.

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15. For the sake of convenience Section 37(1) is reproduced hereinbelow:—

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“37. O昀昀ences to be cognisable and non-bailable.-

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(1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974)-

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(a) every o昀昀ence punishable under this Act shall be cognisable.

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(b) no person accused of an o昀昀ence punishable for 2[o昀昀ences under section 19 or section 24 or section 27A and also for o昀昀ences 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 satis昀椀ed that there are reasonable grounds for believing that he is not guilty of such o昀昀ence and that he is not likely to commit any o昀昀ence while on bail.”

¶144

16. In view of the above provisions, it is implicit that no person accused of an o昀昀ence involving trade in a commercial quantity of narcotics is liable to be released on bail unless the court is satis昀椀ed that there are reasonable grounds for believing that he is not guilty of such an o昀昀ence and that he is not likely to commit any o昀昀ence while on bail.

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It was held in State of Meghalaya v. Lalrintluanga

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Sailo, 2024 SCC OnLine SC 1751, that the grant of bail without considering Section 37 of the NDPS Act is impermissible. It was observed:

¶147

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“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:—

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“37(1)(b)(ii)- where the Public Prosecutor opposes the application, the court is satis昀椀ed that there are reasonable grounds for believing that he is not guilty of such o昀昀ence and that he is not likely to commit any o昀昀ence while on bail.”

¶151

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 themselves read thus:—

¶152

“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 tra昀케c 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.”

¶153

In the decision in Collector of Customs, New Delhi v. Ahmadalieva Nodira (2004) 3 SCC 549 , the threejudge 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 o昀昀ence. Furthermore, it was held that the reasonable belief contemplated in the provision would require the existence of such facts and circumstances as are su昀케cient in themselves to justify satisfaction that the accused is not guilty of the alleged o昀昀ence.

¶154

As relates to the twin conditions under Section 37(1)(b) (ii) of the NDPS Act, viz., that, 昀椀rstly, there are reasonable

¶155

¶156

2025:HHC:38822

¶157

grounds for believing that the accused is not guilty of such o昀昀ence and, secondly, he is not likely to commit any o昀昀ence 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.

¶158

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 o昀昀ences 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 satis昀椀ed, the ban on granting bail would operate.

¶159

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 o昀昀ence under the NDPS Act, a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a 昀椀nding 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.”

¶160

It was held in Union of India vs Vipin K Varghese 2025

¶161

INSC 1316 that a person found in possession of a commercial quantity of narcotics cannot be released on bail even on the ground of long incarceration without satisfying the twin requirements of Section 37 of the NDPS Act. It was observed:

¶162

¶163

2025:HHC:38822

¶164

“17. The High Court then, on the strength of those premises, recorded a 昀椀nding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged o昀昀ence, treating prolonged incarceration and likely delay as the justi昀椀cation for bail. Such a 昀椀nding is not a casual observation. It is the statutory threshold under Section 37(1)(b)(ii), which would disentitle the discretionary relief and grant of bail, must necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the prosecution’s assertions of operative control and antecedent involvement, risks trenching upon the appreciation of evidence which would be in the domain of the trial court at 昀椀rst instance.

¶165

This Court ordinarily shows deference to the discretion exercised by the High Court while considering the grant of bail. However, o昀昀ences involving a commercial quantity of narcotic drugs stand on a distinct statutory footing. Section 37 enacts a speci昀椀c embargo on the grant of bail and obligates the Court to record satisfaction on the twin requirements noticed above, in addition to the ordinary tests under the Code of Criminal Procedure.

¶166

In the present case, the High Court has not undertaken the analysis of those twin requirements with reference to the material placed by the prosecution. The orders dated 22.01.2025 and 12.03.2025 do not advert to the allegation regarding the respondent’s prior involvement in a seizure of narcotic drugs and psychotropic substances only days prior to the seizure forming the subject matter of the present complaint, nor do they engage with the prosecution’s assertion as to the respondent’s role in arranging, importing, clearing and supervising the consignments. The omission to consider these factors bears directly upon the statutory satisfaction required by Section 37(1)(b). by Section 37(1)(b).”

¶167

In the present case, the prosecution has collected

¶168

su昀케cient material to prima facie connect the petitioner with the commission of the crime. There is nothing on record to show that the petitioner would not indulge in the commission of an

¶169

¶170

2025:HHC:38822

¶171

o昀昀ence if released on bail. Hence, he has not satis昀椀ed the twin conditions laid down in Section 37 of the ND&PS Act.

¶172

It was submitted that the petitioner was not aware of the fact that the bag contained opium. This submission is only stated to be rejected. Prima facie, the presumptions contained in Sections 35 and 54 of the NDPS Act will apply to the petitioner, and it has to be presumed that he had possessed the opium with the requisite intent. The burden is upon the petitioner to rebut the presumption. There is nothing on record to rebut such presumption at this stage.

¶173

No other point was urged.

¶174

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

¶175

The observation made herein before shall remain con昀椀ned to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.

¶176

( Rakesh Kainthla) Judge 18^th November 2025 (Chander)

Jai Bahadur singh v. State of Hp

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Jai Bahadur singh v. State of Hp

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