Shamina Vs State of Hp

The petitioner has f i led the present petition for seeking regular bail in F.I.R. No. 197 of 2024, dated 5.12.2024, registered at Police Station, Majra, District Sirmour, H.P., for the commission of ofences punishable under Sections 22 and 29 of f the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

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

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2 . It has been asserted that the police ofcials raided Ï

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the petitioner’s house after sunset and before sunrise and arrested her without obtaining prior permission from the Court. The petitioner has been in judicial custody since 5.12.2024. She has no connection with the commission of the ofence, and she f was falsely implicated. The prosecution has failed to prove the conscious possession of the petitioner. The petitioner is a housewife, and her presence in the house was normal. There is no evidence to show that she had conspired with her husband for the possession of the contraband. The petitioner would abide by the terms and conditions that the Court may impose. Hence the petition.

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3 . The petition is opposed by fling a status report i asserting that the police were on patrolling duty on 4.12.2024. They received secret information at 6.45 PM that Shaukat Ali was selling the narcotic capsules from his house, and a huge quantity of the narcotics could be recovered during the search of the house. The information was credible. It was reduced to writing and was sent to the superior of Ï cer. The police associated Firoz Khan and Akhtar Ali and went to the house of Shaukat Ali. The police searched his house in his presence and in

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the presence of the petitioner and recovered 400 tablets of Alprazolam, 240 capsules of Spasmed, 120 capsules of Spasmed, 360 capsules of Parvion Spas and 400 capsules of Parvion Spas Plus. The weight of Alprazolam was found to be 0.260 grams, the weight of Spas Med was found to be 0.20 grams, and the weight of Spas Med 400 capsules was found to be 0.228 grams. The police seized the capsules and arrested Shaukat Ali and the petitioner. The capsules were sent to FSL, and Spasmed Plus, Parvion Spas and Parvion Spas Plus indicated the presence of Tramadol. The capsules of Alprazolam indicated the presence of Alprazolam. An FIR No.70/13, dated 17.2.2013, was registered against the petitioner, in which she was acquitted. A charge sheet has been f i led before the Court. Statements of fve i witnesses have been recorded, and the matter is listed for evidence on 29.12.2025.

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I have heard Mr K.S. Gill, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State.

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5 . Mr K.S. Gill, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely

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implicated based on the fact that she knew about the possession of the capsules by her husband. She was not found in possession of any contraband. The wife cannot be held liable for the actions of her husband. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

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6 . Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State, submitted that a commercial quantity of contraband was recovered from the house in which the petitioner was residing. The petitioner was in joint possession of the contraband. Rigours of Section 37 of the NDPS Act apply to the present case, and the petitioner has not satisf i ed the twin conditions laid down under Section 37 of the NDPS Act. Hence, he prayed that the present petition be dismissed.

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

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8 . The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314: 2025 SCC OnLine SC 781, wherein it was observed at page 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 confirmed, 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 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 find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences 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 inflict 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)

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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 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)

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“ 3 . Grant of bail, though being a discretionary order, but, however, calls for the 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 placement of the accused in the 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 offence is

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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 suffer 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 offence ;

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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 fleeing, 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 offence being repeated ;

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( vii ) reasonable apprehension of the witnesses being influenced; and

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

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xxxxxxx

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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 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 visà-vis the offence(s) alleged against an accused .” (emphasis supplied)

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

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10. The status report mentions that the petitioner and her husband were in the house. The police checked the drawer of the double bed and recovered a carry bag containing the capsules. The petitioner was residing in the house with her husband; therefore, she has to be treated in possession of the contraband. 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 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 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

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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 that 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 a 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 accusedappellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.”

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Therefore, prima facie , the petitioner was in possession of the charas when the carry bag containing the charas bag in the drawer of the double bed of the house in which the petitioner was residing and the burden would shift upon the petitioner to show that she was not in conscious possession as per Sections 35 and 54 of the NDPS Act.

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It was submitted that the police had received secret information that Shaukat Ali was selling the capsules. The information pertains to Shaukat Ali and not to the petitioner; hence, the petitioner cannot be held liable for the possession of the contraband. This submission will not help the petitioner. The information given to the police cannot be proved in a Court of law because it is based upon the information received from a third person, and the purpose of proving the information is to prove the truth of the information. Therefore, the same will amount to hearsay evidence and cannot be admitted either on behalf of the prosecution or the defence. It was laid down by the

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Hon’ble Supreme Court in Bhugdomal Gangaram v. State of Gujarat , (1984) 1 SCC 319: 1983 SCC OnLine SC 108 that the secret information received by the police is inadmissible without examining the informant. It was observed at page 326:

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“13. Accused 3 and 5 have been convicted by the learned Single Judge under Section 66(1)( b ) of the Act. The prosecution relies on the evidence of PW 12 to show that he had received information in the evening of September 12, 1970, that from Baroda the truck GTD 4098 would be carrying liquor to Ahmedabad and that Accused 3 and 4 and some other persons would be coming in a taxi behind the truck. But since the informant has not been examined as a witness, the evidence of PW 12 that he was informed that Accused 3 and 4 would be coming behind the truck in a taxi is not admissible…”

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Thus, no advantage can be derived from the information received by the police.

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It is undisputed that the quantity of the contraband recovered by the police was a commercial quantity. Therefore, the rigours of Section 37 of the NDPS Act apply to the present case.

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15. Section 37 of the NDPS Act provides that in an of f ence involving a commercial quantity, the Court should be satisfed that the accused is not guilty of the commission of an i

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of f ence and is not likely to commit any ofence while on bail. It f

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reads as follows:

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“37. Offences to be cognisable and non-bailable. –

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(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 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–

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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 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

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commit an offence while on bail, he cannot be released. It was

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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) offences 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 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

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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 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 trafÏcking and/or dealing in intoxicants clandestinely. The 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 trafÏcking 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 a 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 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 socioeconomic consequences and health hazards which would accompany trafÏcking 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 the two 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 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 offence. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufÏcient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. 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

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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) (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 sufÏcient 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 difÏcult 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 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” signifies “in accordance with reason”. In the ultimate analysis, it is a question of fact whether a

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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 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)

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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 trafÏcking 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 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.

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

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“37. Offences to be cognisable and nonbailable.-

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

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(a) every offence punishable under this Act shall be cognisable.

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

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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.

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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:

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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 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.”

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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 thenexisting laws relating to Narcotic drugs. The object and reasons given in the acts themselves read thus:—

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“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 trafÏc in narcotic drugs and psychotropic substances, to implement the

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provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.”

¶171

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 offence. Furthermore, it was held that the reasonable belief contemplated in the provision would require the existence of such facts and circumstances as are sufÏcient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

¶172

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.

¶173

7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC 122 , after reiterating the broad parameters laid down by this Court to be followed while considering an application for bail moved by an accused involved in offences under the NDPS Act, in paragraph 18 thereof this Court held that the scheme of Section 37 of the NDPS Act would reveal that the exercise of power to grant bail in such cases is not only subject to the limitations contained under Section 439 of the Code of Criminal Procedure, but also subject to the limitation placed by Section 37(1)(b)(ii), NDPS Act. Further, it was held that in case one of the two conditions

¶174

23

¶175

2025:HHC:41355

¶176

thereunder is not satisfied, the ban on granting bail would operate.

¶177

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 the 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.”

¶178

21. In the present case, the prosecution has collected

¶179

sufcient material to Ï 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 of f ence if released on bail. Hence, she has not satisfed the twin i conditions laid down in Section 37 of the NDPS Act.

¶180

It was submitted that there is a delay in the progress of the trial, and the petitioner is entitled to bail because of the delay. This submission will not help the petitioner. It was laid down by the Hon’ble Supreme Court in Union of India vs. Vijin K. Varghese 2025:INSC:1316 that bail cannot be granted on the prolonged incarceration without satisfying the twin conditions laid down under Section 37 of the NDPS Act. It was observed: -

¶181

24

¶182

2025:HHC:41355

¶183

“17. The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding 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 first instance.

¶184

This Court ordinarily shows deference to the discretion exercised by the High Court while considering the grant of bail. However, offences involving a commercial quantity of narcotic drugs stand on a distinct statutory footing. Section 37 enacts a specific 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.

¶185

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).”

¶186

25

¶187

2025:HHC:41355

¶188

23. A similar view was taken in Union of India v Namdeo

¶189

Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025,

¶190

wherein it was observed:

¶191

“11. In the present case, this Court finds that though the Respondent-accused was in custody for one year, four months, and charges have not been framed, yet the allegations are serious inasmuch as not only is the recovery much in excess of the commercial quantity, but the Respondent-accused allegedly got the cavities ingeniously fabricated below the trailer to conceal the contraband. 12. Prima facie, this Court is of the opinion that the Respondent-accused is involved in drug trafÏcking in an organised manner. Consequently, no case for dispensing with the mandatory requirement of Section 37 of the NDPS Act is made out in the present matter.”

¶192

No other point was urged.

¶193

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

¶194

The observations made hereinabove are regarding

¶195

the disposal of this petition and will have no bearing, whatsoever, on the case's merits.

¶196

( Rakesh Kainthla) Judge

¶197

3^rd December, 2025 (Chander)

Shamina v. State of Hp

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Shamina v. State of Hp

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