Rohit Kumar Vs State of Hp

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No. 1218 of 2026 Reserved on: 17.07.2026 Decided on: 21.7.2026

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Rohit Kumar …. Petitioner Versus State of HP …. Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge.

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Whether approved for reporting?¹ No.

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For the Petitioner : Mr Ashwani Pathak, Senior Advocate with Mr Dev Raj Advocate. For the Respondent/State : Mr Prashant Sen, Deputy 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. 204 of 2025, dated 22.09.2025, registered for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic

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

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Substances Act (hereinafter referred to as ‘the NDPS Act’) at Police Station Sundernagar, District Mandi, H.P.

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It has been asserted that the police had laid a Nakka at Pungh Four lane on 22.09.2025. The petitioner, along with coaccused Nakul Mittal, Arnav Chauhan and Saksham Bharti, came in a vehicle bearing registration No. UP-16AX-2143. The police checked the car and recovered 1.174 kilograms of charas from a backpack lying in the dicky of the car. Divyansh Patel was driving the car, and the petitioner was sitting in the rear seat with the co-accused. The police seized the charas and arrested the occupants of the vehicle. The police have completed the investigation and filed the charge sheet before the Court. The petitioner's custody is not required. The Court had released the co-accused Nakul Mittal on bail, and the petitioner is entitled to bail on the principle of parity. No recovery was effected from the conscious and exclusive possession of the petitioner. The petitioner is a young boy of 19 years and a student. He does not have any criminal antecedents. The conclusion of the trial is likely to take some time. The petitioner is a permanent resident of Bihar, and there is no chance of his absconding. He would abide by the terms and conditions that the Court may impose.

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Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition is opposed by filing a status report asserting that the police were checking the vehicles in a nakka at Pungh four-lane on 22.09.2025. They intercepted a vehicle bearing registration No. UP-16AX-2143. The driver and occupants of the vehicle became frightened after seeing the police. The police joined Kuldeep Kumar and Mukesh Kumar as independent witnesses. The police inquired about the names of the occupants of the vehicle. The driver identified himself as Divyansh Patel, the person sitting beside him identified himself as Nakul Mittal, and the persons sitting in the rear seat identified themselves as Arnav Chauhan, Saksham Bharti and Rohit Kumar (present petitioner). The police searched the vehicle and recovered a carry bag containing 1.174 kilograms of charas. The police seized the charas and arrested the occupants of the vehicle. The charas was sent to SFSL, Junga, and as per the report of analysis, it was confirmed to be a sample of charas. The occupants revealed during interrogation that they had handed over ₹5000/each to Kashin Kashyap, who had also accompanied the accused on his motorcycle. They identified the

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room where they had stayed in Kullu. The petitioner had gone to Kullu from Solan to purchase Charas on 21.09.2025, but had stayed in a hotel at 9 miles Pandoh, with his friends Nakul Mittal and Aditya Kumar. Arnav Chauhan waited for his friends at Pandoh. He boarded the vehicle bearing registration no. UP16AX-2143. The police completed the investigation and filed the charge sheet before the Court of learned Special Judge, Mandi, on 17.01.2026. Hence, the status report.

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I have heard Mr Ashwani Pathak, learned Senior Advocate, assisted by Mr Dev Raj, learned counsel for the petitioner and Mr Prashant Sen, learned Deputy Advocate General, for the respondent/State.

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Mr Ashwani Pathak, learned Senior Advocate, for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. Co-accused Nakul Mittal has been released on bail by this Court. He was also travelling in the vehicle from which the recovery was effected. The petitioner is entitled to bail on the principle of parity. The petitioner is a student, and his career would be spoiled by detaining him in custody. The petitioner would abide by the terms and conditions that the Court

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may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr Prashant Sen, learned Deputy Advocate General for the respondent/State, submitted that the petitioner was found in possession of a commercial quantity of Charas. The rigours of Section 37 of the NDPS Act apply to the present case. He has failed to satisfy the twin conditions laid down under Section 37 of the NDPS Act, and he is not entitled to bail. He prayed that the present petition be dismissed.

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I have given a 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 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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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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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

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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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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 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, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence 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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In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977 , this Court held that although it is

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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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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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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 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 offence(s) alleged against an accused .” (emphasis supplied)

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9. Hon’ble Supreme Court held in State of Rajasthan v.

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Balchand , (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC

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261 that the normal rule is bail and not jail, except where the

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gravity of the crime or the heinousness of the offence suggests

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otherwise. It was observed at page 308:

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The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

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It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also, the heinousness of the crime….”

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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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Perusal of the status report shows that the petitioner was present in the vehicle from which the recovery of 1 Kg 174 grams of charas was effected. 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

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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

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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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20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that to make the possession illicit, there must be conscious possession.

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21. It is highlighted that unless the possession was coupled with the requisite mental element, i.e., conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

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

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24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

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25. 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

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Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966: (1976) 2 WLR 361 (QBD)] .)

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26. Once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where a presumption is also available to be drawn from possession of illicit articles.

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27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.”

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The quantity of charas stated to be in possession of

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the petitioner was more than the commercial quantity, and the rigours of Section 37 of the NDPS Act apply to the present case.

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Section 37 of the NDPS Act provides that in an offence involving a commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and

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is not likely to commit any offence while on bail. It reads as

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follows:

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“37. Offences 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 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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It was submitted that, as per the prosecution, the petitioner had stayed at 9 Mile Pandoh. The actual purchase was not made by the petitioner, and the petitioner was not connected

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to the purchase. This submission will not help the petitioner as it is based upon the statement made by the co-accused, which is inadmissible in evidence. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine

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SC 588 that a statement made by a co-accused during the investigation is hit by Section 162 of CrPC and cannot be used as a

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piece of evidence. It was also held that the confession made by an accused is inadmissible under Section 25 of the Indian Evidence Act. It was observed at page 568: -

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44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police officer. A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1: (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.”

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Similarly, it was held in Surinder Kumar Khanna vs

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Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC

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271 that a confession made by an accused cannot be taken as a substantive piece of evidence against another co-accused and can only be utilised to lend assurance to the other evidence. The Hon’ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a police officer during the investigation is hit by Section 25 of the

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Indian Evidence Act and is not saved by the provisions of Section 67 of the NDPS Act. Therefore, no advantage can be derived by the petitioner from the confessional statement made by the coaccused.

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It was submitted that the co-accused Kashin Kashyap and Nakul Mittal have been enlarged on bail, and the petitioner is entitled to bail on the principle of parity. The submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Sagar v. State of U.P., 2025 SCC OnLine SC 2584 , that a person cannot be released on bail after applying the principle of parity without examining his role. It was observed:

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“14. What flows from the above judgments, which have been referred to, only to the limited extent indicated above, is that the High Courts speak in one voice that parity is not the sole ground on which bail can be granted. That, undoubtedly, is the correct position in law. The word ‘parity’ is defined by the Cambridge Dictionary as “ equality, especially of pay or position. ” When weighing an application on parity, it is the ‘ p osition ’ that is the clincher. The requirement of ‘ p ositio n ’ is not met only by involvement in the same offence. Position means what the person whose application is being weighed, his position in crime, i.e., his role, etc. There can be different roles played - someone part of a large group, intending to intimidate; an instigator of violence; someone who throws hands at the other side, instigated by such words spoken by another, someone who fired a weapon or swung a machete - parity of these people will be with those who have performed similar acts, and

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not with someone who was part of the group to intimidate the other by the sheer size of the gathering, with another who attempted to hack away at the opposer's limbs with a weapon.”

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Kashin Kashyap was not found on the spot, and he was arrested during the investigation based on a disclosure statement and the financial transaction, whereas the petitioner was apprehended on the spot. Therefore, the petitioner cannot claim parity with Kashin Kashyap. The co-accused, Nakul Mittal, rode the motorcycle with the petitioner and the co-accused. He was scheduled to leave on the motorcycle and not in the vehicle. However, the co-accused, Kashin Kashyap, told him at the last moment that he would ride the motorcycle and Nakul Mittal should travel in the vehicle. Therefore, this fortuitous circumstance put him in the vehicle. The Court held in these circumstances that he could not be construed to be in possession.

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The petitioner's case is entirely different. He had travelled with the co-accused from Solan in the vehicle from which the recovery was effected. He was returning in the same vehicle with the co-accused from Pandoh. Thus, the petitioner’s case is clearly distinguishable from the case of Nakul Mittal, and the petitioner cannot claim bail on the principle of parity.

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It was submitted that the petitioner remained in custody for about one year, and his trial has not commenced. The trial is not likely to conclude soon. Therefore, the petitioner's right to a speedy trial is being violated. The 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 ground of prolonged incarceration without satisfying the twin conditions laid down under Section 37 of the NDPS Act. It was observed: -

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“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.

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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

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requirements noticed above, in addition to the ordinary tests under the Code of Criminal Procedure.

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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).”

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A similar view was taken in Union of India v Namdeo

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Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025, wherein it was observed:

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“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.

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Prima facie, this Court is of the opinion that the Respondent-accused is involved in drug trafficking 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.”

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21. This position was reiterated in State of Punjab v. Sukhwinder Singh, 2026 SCC OnLine SC 671 , wherein it was

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observed: -

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9. It is well-settled that in matters involving recovery of contraband in commercial quantity, the twin conditions under Section 37(1)(b)(ii) of the NDPS Act are mandatory and entail no relaxation merely on the ground that the accused has undergone prolonged incarceration during the pendency of trial. The provision casts upon the Court a duty to record, before enlarging an accused on bail, its satisfaction on two cumulative conditions, first, that there exist reasonable grounds for believing that the accused is not guilty of the offence charged; and second, that he is not likely to commit any offence while on bail. The recording of such satisfaction is not a mere formality but a mandatory precondition, the non-observance of which vitiates the grant of bail. This Court, in Kashif (supra), has held in no uncertain terms that the recording of satisfaction on the twin conditions under Section 37 is mandatory and not merely directory, and that an order granting bail without such recorded satisfaction stands vitiated and cannot be sustained. The same view stands reiterated in Lalrintluanga Sailo (supra).

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10. The impugned order, on its own showing, does not record the satisfaction mandated under Section 37(1)(b)(ii) of the NDPS Act. Far from recording such satisfaction, the High Court has gone on to observe that ‘the rigours of Section 37 of the NDPS Act can be diluted bearing in mind the right to a speedy trial.’ Such an approach is plainly contrary to the settled law laid down by this Court and deserves to be set aside on this ground alone. The right to speedy trial, rooted in Article 21 of the Constitution, is undoubtedly a precious Constitutional right. That said, in matters governed by a special enactment such as the NDPS Act, particularly where the recovery is of a commercial

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quantity, the said right under Article 21 must be exercised within the framework of Section 37 and cannot be pressed into service solely on the ground of delay to override it. The constitutional right under Article 21 and the special provision of law under Section 37, NDPS Act, are to be read harmoniously and not placed in opposition to each other. The High Court, by failing to record its satisfaction on the twin conditions under Section 37, has, in this Court's view, committed an error.

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9. The position of law on the grant of bail in matters involving the recovery of a commercial quantity of contraband under the NDPS Act is well settled. Section 37(1)(b)(ii) of the NDPS Act is cast in mandatory terms. Where the Public Prosecutor opposes the bail application, the Court can enlarge an accused on bail only upon recording its satisfaction on two cumulative conditions: first, that there are reasonable grounds for believing that the accused is not guilty of the offence; and second, that the accused is not likely to commit any offence while on bail. The recording of such satisfaction is not a mere formality but a jurisdictional requirement. This Court in Kashif (supra) has held, in plain terms, that the nonrecording of the twin satisfaction, being mandatory in nature, renders an order granting bail unsustainable. A similar view has been expressed in Lalrintluanga Sailo (supra) and Ajay Kumar Singh (supra).

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10. When the impugned order is tested against that settled position, it becomes apparent that paragraph 8 of the impugned order, which carries the weight of the reasoning, does not contain a finding on either of the twin conditions prescribed by Section 37(1)(b)(ii) of the NDPS Act. What the High Court has, instead, proceeded on is the proposition that “the rigours of Section 37 of the NDPS Act can be diluted bearing in mind the right to a speedy trial”. The right to speedy trial under Article 21 of the Constitution is undoubtedly a valuable constitutional guarantee, but in the context of a special statute such as

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the NDPS Act dealing with commercial quantity, that right has to be read alongside, and not in displacement of, the mandate of Section 37. The omission to record the twin satisfaction prescribed by the statute, it appears, may have escaped the attention of the High Court.

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