Himachal Pradesh High Court

Reserved On: 30.06.2025 vs State Of Himachal Pradesh on 4 July, 2025

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1301 of 2025 Reserved on: 30.06.2025

Date of Decision: 04.07.2025.

Vishal son of Sh. Hem Raj ...Petitioner

Versus

State of Himachal Pradesh ...Respondent

Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 No.

For the Petitioner : Mr. G.R. Palsra, Advocate.

For the Respondent/State : Mr. Prashant Sen, Deputy Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail in F.I.R. No. 263 of 2023, dated 07.11.2023

registered at Police Station Sunder Nagar, District Mandi, H.P.,

for the commission of offences punishable under Sections 20, 25

and 29 of the Narcotic Drugs and Psychotropic Substances Act (in

short 'NDPS Act')

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

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

police intercepted a motorcycle and recovered 1.559 kgs of

Charas from a bag. The petitioner is innocent, and he was only a

pillion rider. He did not know anything about the transportation

of the Charas. The learned Magistrate did not take any sample

from the recovered contraband, which is a violation of Section

52A of the NDPS Act. No recovery was effected from the

petitioner. The petitioner has no criminal history. He would

abide by all the terms and conditions which the Court may

impose. Hence, the petition.

3. The petition is opposed by filing a status report

asserting that the police party had set up a nakka on 07.11.2023.

A motorcycle arrived on the spot at 10:50 a.m. The motorcyclist

tried to reverse it after seeing the police, however, the police

stopped the motorcycle. The rider of the motorcycle identified

himself as Vishal, son of Surinder Pal, and the pillion rider

identified himself as Vishal, son of Hem Raj. They had kept a

blue backpack between them, which was checked and was found

to be containing 1.559 Kgs of Charas. The police seized the

charas and arrested the motorcycle riders. The Charas was sent

to SFSL Junga for chemical examination and was confirmed to be

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charas. A charge sheet has been filed before the Court on

26.02.2024 and the matter was listed before the learned District

and Sessions Judge, Mandi, on 19.06.2025 and 03.07.2025,

respectively, for evidence.

4. I have heard Mr. G.R. Palsra, learned counsel for the

petitioner and Mr. Prashant Sen, learned Deputy Advocate

General for the respondent/State.

Mr. G.R. Palsra, learned counsel for the petitioner,

submitted that the petitioner is innocent and he was falsely

implicated. The charas was recovered from the backpack, which

is not connected to the petitioner. More than 1 ½ years have

elapsed since the arrest of the petitioner, and the prosecution

has failed to complete the evidence. Therefore, he prayed that

the present petition be allowed and the petitioner be released on

bail.

6. Mr. Prashant Sen, learned Deputy Advocate General,

submitted that the petitioner was found in possession of a

commercial quantity and the rigours of Section 37 of the NDPS

Act apply to the present case. The petitioner has not satisfied the

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twin conditions laid down under Section 37 of the NDPS Act.

Therefore, he prayed that the present petition be dismissed.

7. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

8. The parameters for granting bail were considered by

the Hon'ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768:

2024 SCC OnLine SC 974, wherein it was observed at page 783: -

"Relevant parameters for granting bail

26. While considering as to whether bail ought to be

granted in a matter involving a serious criminal offence,

the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused,

the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the

possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing

the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC

(Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3

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SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]

9. This position was reiterated in Ramratan v. State of

M.P., 2024 SCC OnLine SC 3068, wherein it was observed as

under:-

"12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin

Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC,

the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the

presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

"14. The language of Section 437(3) CrPC, which uses the expression "any condition ... otherwise in the

interest of justice" has been construed in several decisions of this Court. Though the competent court is

empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the

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

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

.

"15. The words "any condition" used in the provision

should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a

reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the

case do not warrant such an extreme condition to be imposed." (Emphasis supplied)

14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into

consideration while deciding the bail application and

observed:

"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to

grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration

while considering an application for bail are the nature of the accusation and the severity of the punishment in the

case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to

the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as

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a recovery agent to realise the dues of the complainant, and that too, without any trial." (Emphasis supplied)

10. This position was reiterated in Shabeen Ahmed versus

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

11. The present petition has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

12. Perusal of the status report shows that the petitioner

was riding on the motorcycle from which the recovery of 1.559

kgs 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

the contraband. It was observed:

"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.

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

.

22. The expression "possession" is a polymorphous term

which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in 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.

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

24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a

given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or

control.

25. The word "possession" means the legal right to

possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it

was observed that where a person keeps his firearm in his mother's flat, which is safer than his own home, he must be considered to be in possession of the same.

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

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

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54, where also presumption is also available to be drawn from possession of illicit articles.

27. In the factual scenario of the present case, not only possession but conscious possession has been

.

established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the

Act."

13. The petitioner was riding on the motorcycle; hence,

he was prima facie in possession of charas.

14.

The police had recovered 1.559 Kgs of charas, which

is a commercial quantity; therefore, the rigours of Section 37 of

the ND&PS Act apply to the present case. Section 37 of the NDPS

Act provides that in an offence involving commercial quantity,

the Court should be satisfied that the accused is not guilty of the

commission of an offence and is not likely to commit any offence

while on bail. Section 37 of the NDPS Act reads as under:

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

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

(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

(ii) where the Public Prosecutor opposes the

application, the court is satisfied that there

are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on

bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure,

1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

15.

This Section was interpreted by the Hon'ble Supreme

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

738 and it was held that in the absence of the satisfaction that the

accused is not guilty of an offence and he is not likely to commit

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

observed:

"7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain

offences enumerated under the said Section. They are :

(1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity.

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8. The accusation in the present case is with regard to the fourth factor, namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences

under Section 37 of the NDPS Act, in case, the court

proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any

other enactment.

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

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

16. This position was reiterated in State of Kerala Versus

Rajesh, AIR 2020 SC 721, wherein it was held:

"19. This Court has laid down broad parameters to be followed while considering the application for bail moved

by the accused involved in offences under the NDPS Act. In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429, it has been elaborated as under:-

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and

followed. It should be borne in mind that in a murder case, the accused commits the murder of one or two persons, while those persons who are

dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large stake and

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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:

24. With deep concern, we may point out that the organised activities of the underworld and

the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a

sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in r order to effectively control and eradicate this

proliferating and booming devastating menace, causing deleterious effects and deadly impact on society as a whole, Parliament, in its wisdom, has made effective

provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person

accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

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

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent

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accused on bail. Instead of attempting to take a holistic view of the harmful socio-

economic consequences and health hazards which would accompany trafficking illegally

in dangerous drugs, the court should

implement the law in the spirit with which Parliament, after due deliberation, has amended."

20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37, which commences

with the non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of the commission of an offence under the Act unless twin

conditions are satisfied. The first condition is that the

prosecution must be given an opportunity to oppose the application, and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these

two conditions is not satisfied, the ban for granting bail operates.

21. The expression "reasonable grounds" means

something more than prima facie grounds. It contemplates substantial probable causes for believing

that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are

sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

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

Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC

OnLine SC 1237 wherein it was observed at page 110:

"21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24

or 27-A and also for offences involving a commercial quantity are:

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

(ii) There must exist "reasonable grounds to believe" that : (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.

22. The standard prescribed for the grant of bail is

"reasonable ground to believe" that the person is not guilty of the offence. Interpreting the standard of "reasonable grounds to believe", a two-judge Bench of this Court in Shiv Shanker Kesari [Union of India v. Shiv

Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], held that : (SCC pp. 801-02, paras 7-8 & 10-11)

"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means

something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged, and this

reasonable belief contemplated in turn points to the existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence charged.

8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act

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reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable". '7. ... Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an

exact definition of the word "reasonable". Reason

varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning

which built up the old scholastic logic sounds now like the jingling of a child's toy.' [See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504,

para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532] ]

***

10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis, it is a question of fact whether a particular act is

reasonable or not, depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of

Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]

11. The court, while considering the application for

bail with reference to Section 37 of the Act, is not called upon to record a finding of not guilty. It is for the limited purpose, essentially confined to the

question of releasing the accused on bail, that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty." (emphasis supplied)

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23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and

whether he is likely to commit any offence while on bail.

Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country, stringent parameters for the

grant of bail under the NDPS Act have been prescribed.

18. In the present case, the petitioner was, prima facie,

found in possession of 1.559 Kgs charas, and there is nothing to

show that he would not commit a similar offence in case of his

release on bail. Therefore, he has failed to satisfy the twin

conditions laid under Section 37 of the NDPS Act and cannot be

released on bail.

19. It was submitted that the learned Magistrate has not

taken a sample from the recovered Charas, which is a violation of

Section 52-A of the NDPS Act. This submission will not help the

petitioner. It was laid down in Sandeep Kumar Vs State of H.P.,

2022 Law Suit (HP) 149, that the provision of Section 52-A of the

NDPS Act is not mandatory and its non-compliance is not fatal to

the prosecution case. It was observed: -

"24. It has also been strenuously argued on behalf of the appellants that the investigating agency had failed to comply with the provisions of Section 52-A of the NDPS Act and thus cast a shadow of doubt on its story. The contention

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raised on behalf of the appellants is that the rules framed for investigations under the NDPS Act are mandatory and have to be strictly followed. Neither the required sample was taken on the spot, nor were the samples preserved by

.

complying with Section 52-A of the Act. It has been argued

that compliance with Section 52-A of the Act is mandatory..... xxxxxx

27. The precedent relied upon on behalf of the appellants,

however, did not lay down the law that non-compliance with Section 52-A of the Act is fatal to the prosecution's case under the NDPS Act. On the other hand, in State of Punjab vs. Makhan Chand, 2004 (3) SCC 453, the Hon'ble Supreme

Court, while dealing with the question of the effect of non- compliance of Section 52-A, has held as under: -

10. This contention, too, has no substance for two reasons. Firstly, Section 52A, as the marginal note r indicates, deals with the "disposal of seized narcotic

drugs and psychotropic substances". Under Sub-

section (1), the Central Government, by notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances having

regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case,

they could be disposed of after following the procedure prescribed in Sub-sections (2) & (3). If the

procedure prescribed in Sub-sections (2) & (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificate contemplated by

Subsection (2), then Sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under Sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52A(1) does not empower the Central

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Government to lay down the procedure for the search of an accused but only deals with the disposal of seized narcotic drugs and psychotropic substances.

11. Secondly, when the very same standing orders came up

for consideration in Khet Singh v. Union of India, 2002 (4) SCC

380, this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the Officer-in-Charge of the investigation. It was also held

that they were not inexorable rules, as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do

not find any substance in this contention."

20. Thus, the petitioner is not entitled to bail because of

the violation of Section 52-A of the NDPS Act.

21. No other point was urged.

22. In view of the above, the present petition fails and the

same is dismissed.

23. The observations made hereinabove are regarding the

disposal of the petition and will have no bearing, whatsoever, on

the case's merits.

(Rakesh Kainthla) Judge 04th July, 2025 (ravinder)