iii. Because, the petitioner is just been working as a driver on the
vehicle which is owned by co-accused Raju Singh and apart from
driving the petitioner has no role as alleged in the present case/FIR.
iv. Because, the conscious possession of the contraband is highly
doubtful and is a subject matter of trial as the recovery was shown to
be effected from the trunk of the car and there is no material to
indicate that the petitioner was having knowledge of the alleged
contraband. In fact, he is not the driver nor the owner of the said
vehicle. So the recovery as alleged in the FIR cannot be said to be
2025.01.28 17:09 recovered from the conscious possession of the petitioner.
x. Because out of 20 cited witnesses by the prosecution only one
witness has been examined so far and the trial is not likely to
conclude in the near future. So the further incarceration of the
petitioner is not justified.
xi. Because there is no one in the family of the petitioner except his
wife to take care of his minor children."
6. The petitioner's counsel prays for bail by imposing any stringent conditions and
contends that further pre-trial incarceration would cause an irreversible injustice to the
petitioner and their family.
7. The State's counsel opposes bail and refers to the status report.
8. Dealing in 160 kgs of poppy husk is a punishable offense under the NDPS Act in
the following terms:
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No fica on No S.O.1055(E)
dated 10/19/2001
Common Name
(Name of Narco c Drug and
Psychotropic Substance Poppy straw
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name ******
Small Quan ty 1000 Gram (i.e. equivalent to 1 Kg)
Commercial Quan ty 50000 Gram (i.e. equivalent to 50 Kg)
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) &
2(xxiii) NDPS Act, 1985
No fica on No S.15 & S.2(xviii) NDPS Act, S.O.821(E)
dated 11/14/1985
Sr. No. S.2(xviii)
Common Name
(Name of Narco c Drug and
Psychotropic Substance ******
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
S.2(xviii) "poppy straw" means all parts (except
the seeds) of the opium poppy a er harves ng
whether in their original form or cut, crushed or
powdered and whether or not juice has been
extracted therefrom; S. 2(viiib)] "illicit traffic", in
rela on to narco c drugs and psychotropic
substances, means--
S2. (xviii) "poppy straw" means all parts (except
the seeds) of the opium poppy a er harves ng
whether in their original form or cut, crushed or
powdered and whether or not juice has been
extracted therefrom;
9. The quantity allegedly involved in this case is commercial. Given this, the rigors
of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin
conditions put in place by the Legislature under Section 37 of the NDPS Act.
10. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that
no person accused of an offense punishable for offenses involving commercial quantity
shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity
to oppose the application of release, and (ii) where the Public Prosecutor opposes the
application, the Court is satisfied that there are reasonable grounds for believing that
accused is not guilty of such offense and is not likely to commit any offense while on
bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden
is on the petitioner to satisfy the twin conditions put in place by the Legislature under
Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the
Court can release a person accused of an offense punishable under the NDPS Act for
possessing a commercial quantity of contraband only after recording reasonable
satisfaction of its rigors.
11. The State's Counsel argues that a plain reading of Section 37 reveals that the
legislature intends to make the law stringent to curb the drug menace. It is further to be
noticed that the provisions are couched in negative language, meaning that to grant bail,
the Court needs to record a finding that there are reasonable grounds for believing that
the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to
satisfy the Court about his non-involvement in the case. While interpreting the provisions
of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be
achieved by putting these stringent conditions.
12. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The
stringent conditions of section 37 placed in the statute by the legislature do not create a
bar for bail for specified categories, including the commercial quantity; however, it
creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors
no more exist, and the factors for bail become similar to the bail petitions under general
penal statutes like IPC. Thus, both the twin conditions need to be satisfied before a
person accused of possessing a commercial quantity of drugs or psychotropic substance is
37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974),--
(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
2025.01.28 17:09 force on granting of bail.
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to be released on bail. The first condition is to provide an opportunity to the Public
Prosecutor, enabling them to take a stand on the bail application. The second stipulation
is that the Court must be satisfied that reasonable grounds exist for believing that the
accused is not guilty of such an offense and is not likely to commit any offense while on
bail. If either of these conditions is not met, the ban on granting bail operates. The
expression "reasonable grounds" means something more than prima facie grounds. It
contemplates substantial probable causes for believing the accused is not guilty of the
alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for
believing that the accused is not guilty of such an offense, the Court still cannot give a
finding on the assurance that the accused is not likely to commit any such crime again.
13. The petitioner's difficulty is the criminal antecedents of cases under the NDPS
Act and similar offences.
14. In State of West Bengal v. Respondent, MANU/SC/0854/2022 [2022 INSC 691],
Hon'ble Supreme Court holds,
[18]. The other segment of the relevant aspects of this case pertains
to the conduct of the Respondent. In this regard, a few noticeable
facts and factors against him could be summarised thus: he has
been involved in as many as 53 criminal cases and had been
convicted in two of them; there had been several allegations
against him of threatening the Investigating Officers and public
servants from time to time; even in the present case too, he had
allegedly threatened and misbehaved with the police officers and
has been charge-sheeted for offences Under Sections 353 and 506
Indian Penal Code; and on 23.02.2021, he did not appear before
the Investigating Officer even after dismissal of his writ petition by
the High Court and was arrested at a faraway place. These facts
and factors, prima facie, give rise to the question as to whether the
Respondent was entitled to be granted the indulgence of bail. The
High Court has taken the view that, prima facie, the Respondent
might not have committed the offence he has been charged with in
this case; and, looking to his past history, there was nothing on
record to suggest that he was likely to commit an offence under the
NDPS Act while on bail. The High Court has, in the totality of
circumstances, taken the view that the Respondent was entitled for
bail on stringent conditions and has imposed additional conditions
as noticed hereinbefore.
[18.1]. Although, the past history of the Respondent and even his
conduct in relation to the processes concerning the present case
give rise to a few questions but, the strong countervailing factor in
the present case is the prima facie indication that he is being sought
to be framed by concoctions and baseless stories. Another factor
noticeable is that the Respondent has not been involved in any
NDPS Act case or any akin offence in the past. Interestingly, it is
noticed from the material placed on record that nothing of any
contraband Article has been recovered from the Respondent or
from any place under his exclusive control. This factor further adds
on to the doubt as to whether the Respondent had at all been
indulgent in narcotics or any contraband? That being the position,
the view as taken by the High Court cannot be said to be an
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altogether unacceptable or impossible view of the matter.
Moreover, it cannot be said that the Respondent was consciously
seeking to abscond on 23.02.2021 merely because he was found in
the night at Purba Bardhaman and not at Kolkata. In any case, the
aspect relating to tendency to flee has been duly taken care of with
the conditions as imposed by the High Court. The other
submissions with reference to the decision in the case of Prasanta
Kumar Sarkar (supra) hardly make out a case for interference
particularly looking to the nature of evidence sought to be adduced
by the prosecution against the Respondent. In this regard, we
would hasten to observe that apart from the stringent conditions
already imposed by the High Court, it is always open for the
prosecution to seek imposition of any further condition or even to
seek cancellation of the bail granted to the Respondent, in case of
any fault on his part in due adherence to the conditions already
imposed.
[19]. In view of the above, we find no reason to consider
interference in the order passed by the High Court granting bail to
the Respondent with specific conditions.
15. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble
Supreme Court holds,
[10] It is not in dispute and highlighted that the second respondent is a
sitting Member of Parliament facing several criminal cases. It is also
not in dispute that most of the cases ended in acquittal for want of
proper witnesses or pending trial. As observed by the High Court,
merely on the basis of criminal antecedents, the claim of the second
respondent cannot be rejected. In other words, it is the duty of the
Court to find out the role of the accused in the case in which he has
been charged and other circumstances such as possibility of fleeing
away from the jurisdiction of the Court etc.
16. In Jogindro Bai v. State of Haryana, CRM-M-51218-2024, decided on
29.11.2024, Neutral Citation No. 2024:PHHC:162096, this Court observed,
[17]. Adjudicating a bail petition of an accused with a prior
criminal record places a significant and exacting responsibility on
courts to exercise judicial discretion in a manner that is both
reasoned balanced to consider the countervailing impacts on the
freedom of an accused and that of society and free from
arbitrariness, as arbitrariness is antithetical to the rule of law. As a
natural corollary, consideration of an accused's criminal history
should be limited to cases where convictions have been secured,
including those resulting in suspended sentences, and all pending
First Information Reports (FIRs) in which the petitioner is formally
arraigned as an accused. However, cases that culminated in
acquittals, discharges, quashed FIRs, withdrawals of prosecution, or
the filing of closure reports by the investigative authorities must be
excluded.
[18]. Although the legal system upholds the principle that crime,
not the individual, should be condemned, the contours of a playing
field are marshy, and the graver the criminal history, the slushier the
puddles, and a recidivist often operates on precarious ground, where
the weight of a significant criminal record creates an increasingly
challenging terrain. Nonetheless, where the offense for which bail is
sought is minor, such that arrest is generally unwarranted, or bail
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High Court, Sector 1, Chandigarh
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would ordinarily be inevitable, courts must not deny bail solely as a
punitive measure intended to serve as a pre-trial deterrent. Such an
approach contravenes the judiciary's obligation to uphold the
foundational principles of justice and equity in bail proceedings.
Another reason that dis-entitles for bail is the criminal antecedents.
Considering the bail petition of an accused with a criminal history
throws an onerous responsibility upon the courts to act judiciously
and reasonably because arbitrariness is the antithesis of law. The
criminal history must be of cases where the accused was convicted,
including the suspended sentences and all pending First Information
Reports, wherein the bail petitioner stands arraigned as an accused.
In reckoning the number of cases as criminal history, the
prosecution resulting in acquittal or discharge, or when Courts
quashed the FIR, the prosecution stands withdrawn, or the
prosecution filed a closure report, cannot be included. Although
crime is to be despised and not criminal, for a recidivist, the
contours of a playing field are marshy, and the graver the criminal
history, the slushier the puddles. If the petitioner is granted bail, he
will likely re-indulge in the crime.
17. In light of the above, the petitioner's massive criminal history disentitles him
from bail at this stage.
18. The petitioner's arguments did not point toward any material contradictions.
19. The submissions made above, and the grounds in the bail petition do not shift the
burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner
has not stated anything in the bail petition to discharge the burden put by the stringent
conditions placed in the statute by the legislature under section 37 of the NDPS Act. The
investigation reveals sufficient prima facie evidence to connect the petitioner with the
crime; thus, the petitioner fails to make out a case for bail. Any detailed discussions about
the evidence may prejudice the case of the petitioner, the State, or the other accused.
20. Per the custody certificate, the petitioner's custody is 01 year, 09 months and 12
days, which cannot be considered prolonged.
21. In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC
OnLine SC 2109, Hon'ble Supreme Court holds,
[4]. According to the prosecution, contraband material weighing
about 13 kgs. of morphine was found in a motor vehicle which was
driven by co-accused named Md. Jakir Hussain. During the course
of investigation, it was found that the motor vehicle was recorded
in the name of Md. Nizam Uddin who had executed a sale letter
and handed over the custody of the vehicle to accused Md. Abdul
Hai and that accused Md. Jakir Hussain was the driver employed
by accused Md. Abdul Hai and that contraband material in
question was to be handed over to accused-Khalil Uddin, an owner
of a tea shop.
[5]. The High Court by its order which is presently under
challenge, directed release of both the accused as stated above on
bail after they had undergone custody to the tune of about a year.
authenticity of this order/judgment
High Court, Sector 1, Chandigarh
CRM-M-44092-2024
Questioning grant of relief to said accused, the instant appeals have
been preferred.
[7]. What emerges from the record is that large quantity of
contraband weighing about 13 kgs of morphine was found in a car
which was driven by Md. Jakir Hussain. Whether the role played
by said Md. Jakir Hussain could get connected with both the
accused is a question.
[8]. The answer to said question could be the statement recorded of
Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded
under Section 67 of the Act has also named his owner accused
Abdul Hai. We are conscious of the fact that the validity and scope
of such statements under Section 67 has been pronounced upon by
this Court in Tofan Singh v. State of Tamil Nadu . In State by
(NCB) Bengaluru v. Pallulabid Ahmad Arimutta , the rigour of law
lay down by this Court in Tofan Singh was held to be applicable
even at the stage of grant of bail.
[9]. However, going by the circumstances on record, at this stage,
on the strength of the statement of Md. Nizam Uddin, though
allegedly retracted later, the matter stands on a different footing. In
our considered view, in the face of the mandate of Section 37 of
the Act, the High Court could not and ought not to have released
the accused on bail. We, therefore, allow these appeals, set aside
the view taken by the High Court and direct that both the
appellants be taken in custody forthwith.
[10]. We have been given to understand that the charge-sheet has
been filed. In the circumstances, we direct the Trial Court to take
up the matter and conclude the proceedings as early as possible
and preferably within six months from the receipt of this order.
22. In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-
2024, Hon'ble Supreme Court holds,
The petitioners are in custody since 28th May, 2022 for alleged
commission of alleged offence under Section 20(b)(ii)(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985. As per the
FIR allegation, 125.3 kg. of "Ganja" was recovered from the
petitioners.
[3]. It is not in dispute that the trial has commenced and that three
prosecution witnesses have been examined till date.
[4]. Learned counsel for the petitioners submits that the third
prosecution witness was examined as far back as on 28th January,
2024 and since then, no other prosecution witness has been
examined. There is, however, no such averment in the petition.
[5]. Learned counsel appearing for the respondent submits that
every endeavor shall be made on behalf of the prosecution to have
all the witnesses examined by the end of this year.
[6]. The trial court is encouraged to expedite the trial and give its
decision as early as possible, in accordance with law.
[7]. We, however, do not see any reason to interfere the impugned
judgment and order at this stage; however, it is clarified that in the
event the trial is not completed by the end of this year, the
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CRM-M-44092-2024
petitioners shall be at liberty to renew their prayer for bail before
the trial court.
23. A perusal of the bail petition and the documents attached primafacie points
towards the petitioner's involvement and does not make out a case for bail. The impact of
crime would also not justify bail. Any further discussions will likely prejudice the
petitioner; this court refrains from doing so.
24. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
25. Petition dismissed. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
27.01.2025
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
authenticity of this order/judgment
High Court, Sector 1, Chandigarh
