2025:HHC:25914 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1051 of 2025 Reserved on: 29.07.2025 Date of Decision: 04.08.2025 Jagdish Thakur ...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. Vivek Singh Attri, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 146 of 2024, dated 08.10.2024, registered for the commission of offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act’) at Police Station Kala Amb, District Sirmour, H.P. 2. It has been asserted that, as per the prosecution, the Police Party intercepted a vehicle bearing registration No. HP16A- 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:25914 3706, driven by the petitioner, recovered 2 kgs of charas from the carry bag kept beside the driver, and seized the Charas and the vehicle. The police arrested the petitioner. The petitioner is innocent, and he is the only earning member of the family. He was falsely implicated. He has no criminal antecedents. He is a respectable person in society, and there is no chance of his absconding. He would abide by all the terms and conditions which the Court may impose. Hence, the present petition. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 08.10.2024 when they received a secret information at 1:15 a.m. that the petitioner would be transporting a huge quantity of charas in his vehicle bearing registration No. HP16A-3706. The information was reduced to writing, and the police waited for the vehicle with Forest Guard Vishal at some distance from the check post. A vehicle bearing registration No. HP16A-3706 came to the spot at 1:50 a.m. The police signalled the driver to stop the vehicle. The driver tried to run away from the spot; however, the police apprehended him. He revealed his name as Jagdish Thakur (the present petitioner). The police searched the vehicle and found a carry bag containing 2 kilograms of charas, concealed beneath the 3 2025:HHC:25914 front seat, adjacent to the driver’s seat. The police completed the formalities and seized the charas. The police arrested the petitioner. The Charas was sent to SFSL Junga, and as per the report, it was an extract of cannabis and a sample of charas. The police filed the charge-sheet before the learned Trial Court. Statements of three witnesses have already been recorded. The matter was listed on 17.06.2025 for recording the statements of prosecution witnesses. Hence, the status report. 4. I have heard Mr. Vivek Singh Attri, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 5. Mr. Vivek Singh Attri, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The entry number six (6) in the site plan was made in a different pen, showing that it was made subsequently. The certificate of the e-Sakshya App is defective as it was issued on 08.10.2024 at 1:54, whereas the start time of the videos is 08.10.2024 at 1:54 and the end time is 8.10.2024 at 2:54. This shows that the certificate was issued before the recording of the statements. These make the prosecution’s case highly suspect. 4 2025:HHC:25914 There is no evidence to connect the petitioner to the commission of crime. No call details record and no money transactions were brought on record; therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner was found in possession of a commercial quantity of charas. Rigours of Section 37 of the NDPS Act apply to the present case. The petitioner has failed to satisfy the twin conditions laid down in Section 37 of the NDPS Act. The pleas taken by the petitioner relate to the merits of the case and are beyond the scope of the bail jurisdiction. 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 5 2025:HHC:25914 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 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 6 2025:HHC:25914 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) 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: 7 2025:HHC:25914 “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 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. A perusal of the status report shows that the police had intercepted a vehicle bearing registration No. HP16A-3706 and recovered 2 kgs of charas from it. The petitioner was driving the vehicle at the time of its interception. Therefore, prima facie, the petitioner was found in possession of 2 kgs of charas. 8 2025:HHC:25914 13. The petitioner has relied upon the photocopy of the site plan to prove that the entry No.6 is in a different pen and appears to be light. It is difficult to give any such finding based on a photocopy. Further, it is a matter of cross-examination of the Investigating Officer, and simply because the Investigating Officer had used a different pen (assuming that this submission is correct) cannot lead to any inference that the investigation is not proper. Further, the fact that 1:54 was mentioned in the e-Sakshya Certificate will only invalidate the certificate, but will not invalidate the recovery. The effect of mentioning the wrong time is to be seen by the learned Trial Court along with other evidence, but these two factors by themselves are not sufficient to cast doubt on the prosecution’s version. 14. The police recovered 2 kgs of charas, which is a commercial quantity; therefore, the rigours of Section 37 of the NDPS 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: 9 2025:HHC:25914 “37. Offences 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 or section 24 or section 27A, and also for offences involving commercial quantity, shall be released on bail or on his own bond unless– (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 v. Niyazuddin Sk., (2018) 13 SCC 738: (2019) 1 SCC (Cri) 407: 2017 SCC OnLine SC 862 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 at page 740: 10 2025:HHC:25914 “6. 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 27-A and (4) Of offences involving commercial quantity. 7. 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 CrPC 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 offence; (2) That person is not likely to commit any offence while on bail.” 16. This position was reiterated in State of Kerala v. Rajesh, (2020) 12 SCC 122: (2020) 4 SCC (Cri) 147: 2020 SCC OnLine SC 81, wherein it was held at page 128: 18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh [Union of India v. Ram Samujh, (1999) 9 SCC 429: 1999 SCC (Cri) 1522], 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 murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death- 11 2025:HHC:25914 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 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 v. State (UT of Goa) [Durand Didier v. State (UT of Goa), (1990) 1 SCC 95: 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) ‘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 order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this 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 12 2025:HHC:25914 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 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.” 19. 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 CrPC, but is also subject to the limitation placed by Section 37, which commences with a 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. 20. 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. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 13 2025:HHC:25914 37 of the NDPS Act, which is a sine qua non for granting bail to the accused under the NDPS Act. 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 14 2025:HHC:25914 circumstances of which the actor, called on to act 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 15 2025:HHC:25914 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) 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. This position was reiterated in Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18 SCC 374: 2022 SCC OnLine SC 891, wherein it was observed at page 378: 11. It is evident from a plain reading of the non obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that: (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the court must be satisfied that the accused person is unlikely to commit any offence while on bail. 16 2025:HHC:25914 12. The expression “reasonable grounds” has come up for discussion in several rulings of this Court. In Collector of Customs v. Ahmadalieva Nodira [Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549: 2004 SCC (Cri) 834], a decision rendered by a three-Judge Bench of this Court, it has been held thus: (SCC p. 552, para 7) “7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present respondent-accused is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. 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 a satisfaction that the accused is not guilty of the alleged offence.”(emphasis supplied) 13. The expression “reasonable ground” came up for discussion in State of Kerala v. Rajesh [State of Kerala v. Rajesh, (2020) 12 SCC 122: (2020) 4 SCC (Cri) 147] and this Court has observed as below: (SCC p. 129, para 20) “20. 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 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 17 2025:HHC:25914 Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under 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.” (emphasis supplied) 14. To sum up, the expression “reasonable grounds” used in clause (b) of sub-section (1) of Section 37 would mean credible and plausible grounds for the court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the court to believe that the accused person would not have committed such an offence. Dovetailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of Section 37 of the Act, the court is not required to record a finding that the accused person is not guilty. The court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.” 19. In the present case, the petitioner was, prima facie, found in possession of a commercial quantity of 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 18 2025:HHC:25914 twin conditions laid down in Section 37 of the NDPS Act, and he is not entitled to the concession of bail. 20. No other point was urged. 21. In view of the above, the present petition fails and the same is dismissed. 22. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 04th August 2025 (ravinder)