Himachal Pradesh High Court
Rocky Malhotra vs State Of Himachal Pradesh on 31 July, 2025
( 2025:HHC:25612 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1627 of 2025 .
Reserved on: 23.07.2025
Date of Decision: 31.07.2025
Rocky Malhotra ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Monty Goel, Advocate (through Video Conferencing) and Ms. Rashmi Parmar, Advocate (present in the Court).
For the Respondent/State : Mr. Ajit Sharma, Deputy Advocate General, with ASI Jagpal Singh, IO PS Kangra, District Kangra, H.P., with police record.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 158 of 2023 dated 12.09.2023, registered for the commission of offences punishable under Sections 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act (in short 'the ND&PS Act') at Police Station Kangra, District Kangra, H.P. 1 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 FIR, the police approached the petitioner, who was standing with his friends. He .
threw the bag after seeing the police. The police checked the bag and found LSD in it. The petitioner has been in custody for 01 year and 06 months. The prosecution has only examined 04 witnesses.
No independent witness was present at the time of the recovery.
There is a presumption of innocence in favour of the petitioner.
The petitioner participated in the investigation to the satisfaction of the Investigating Officer. The petitioner does not have any criminal antecedents. His custodial interrogation is not required;
therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.
3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 12.09.2023. They received a secret information at 11:50 am that two persons were standing near the gate of Chhota Haridwar Mandir. 01 person has a grey backpack containing a huge quantity of LSD. The information was credible, and it was reduced to writing. The police party went to the spot and introduced themselves. The person tried to run away from the spot. The petitioner had a grey backpack, which he threw into the bushes. He ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 3 ( 2025:HHC:25612 ) identified himself as Rocky Malhotra, and the other person identified himself as Mukesh Kumar. The police checked the .
backpack in the presence of the witnesses and found small 550 rectangular pieces having LSD. The police weighed the pieces and found their weight to be 12.35 grams. The police arrested the petitioner and the other person. The paper pieces were sent to SFSL, Junga, and as per the report of the analyst, the presence of Lysergide (LSD) was detected. The amount of LSD was found to be 47.79 mg per 11.525 g of LSD papers. The police filed the charge sheet. 10 witnesses have been examined, and the statements of 11 witnesses are yet to be recorded. The matter is now listed on 04.09.2025 for recording the statements of prosecution witnesses.
Hence, the status report.
4. I have heard Mr. Monty Goel, learned counsel (through Video Conferencing), Ms. Rashmi Parmar, learned counsel (present in the Court) for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State.
5. Mr. Monty Goel, learned counsel for the petitioner, submitted that as per the report of the analyst, 47.79 mg per 11.525g LSD papers was found, which is less than the commercial ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 4 ( 2025:HHC:25612 ) quantity and the rigours of Section 37 of the ND&PS Act do not apply to the present case. The petitioner has been in custody since .
12.09.2023, and the prosecution has failed to complete its evidence; therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
6. Mr. Ajit Sharma, learned Deputy Advocate General, submitted that the weight of the neutral substance cannot be ignored, and if it is considered, the petitioner was found in possession of 11.25 grams of LSD papers, which is a commercial quantity, and the rigours of Section 37 of the ND&PS Act apply to the present case. The petitioner has not satisfied the twin conditions of Section 37 of the NDPS Act. The prosecution has already examined 10 witnesses, and 01 witness has been given up.
The matter is listed before the learned Trial Court on 04.09.2025, and there is no delay in the progress of the trial. Hence, 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.
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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 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: -
::: Downloaded on - 31/07/2025 21:24:57 :::CIS 6( 2025:HHC:25612 ) "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)
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 ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 7 ( 2025:HHC:25612 ) 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 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.
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12. As per the status report, the petitioner threw the backpack after police officials introduced themselves. The police .
checked the backpack in the presence of Vinod Kumar, Ward Panch, Gram Panchayat Kachhiyari and found 550 rectangular paper pieces weighing 12.35 grams containing LSD; therefore, the allegations in the status report, prima facie, show the possession of LSD by the petitioner.
13. A heavy reliance was placed upon the report of the analyst in which the quantity of LSD was stated to be 47.79 mg per 11.525 g LSD papers, to submit that the quantity of LSD is less than 100 mg, and the same is a non-commercial quantity. This submission cannot be accepted. It was held by the Hon'ble Supreme Court in Hira Singh v. Union of India, (2020) 20 SCC 272, that as per the statement of Objects and Reasons and the Preamble and the relevant provisions of the NDPS Act, the quantity of neutral substance cannot be excluded. It was observed:
10.2. Therefore, considering the Statement of Objects and Reasons and the Preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from clauses (vii-a) and ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 9 ( 2025:HHC:25612 ) (xxiii-a) of Section 2 of the NDPS Act, emphasis is on narcotic drug or psychotropic substance (Sections 21, 22, 23, 24, 27 and 43). Even in the Table attached to the .
Notification dated 19-10-2001, Column 2 is with respect to the name of narcotic drugs and psychotropic substances and Columns 5 and 6 are with respect to "small quantity and commercial quantity". Note 2 of the Notification dated 19-10-2001 specifically provides that the quantity shown against the respective drugs listed in the Table also applies to the preparations of the drug and the preparations of substances of Note 1. As per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the Table apply to isomers ..., whenever the existence of such substance is possible. Therefore, for the determination of "small quantity or the commercial quantity" with respect to narcotic drugs and psychotropic substances mentioned in Column 2, the quantity mentioned in Clauses 5 and 6 is required to be taken into consideration. However, in the case of a mixture of the narcotic drugs/psychotropic drugs mentioned in Column 2 and any mixture or preparation with or without the neutral material of any of the drugs mentioned in Table, lesser of the small quantity between the quantities given against the respective narcotic drugs or psychotropic substances forming part of the mixture and lesser of commercial quantity between the quantities given against the respective narcotic drugs or psychotropic substance forming part of the mixture is to be taken into consideration. For example, a mixture of 100 gm is seized and the mixture consists of two different narcotic drugs and psychotropic substances with neutral material, one drug is heroin and the other is methadone, the lesser of the commercial quantities between the quantities given against the aforesaid two respective narcotic drugs and psychotropic substances is required to be considered. For the purpose of determination of the "small quantity or commercial quantity", in the case of Entry 239, the entire weight of the mixture/drug by whatever name called weight ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 10 ( 2025:HHC:25612 ) of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in E. Micheal Raj [E. Micheal Raj v. Narcotics Control .
Bureau, (2008) 5 SCC 161 : (2008) 2 SCC (Cri) 558] is accepted, in that case, it would be adding something to the relevant provisions of the statute which is not there and/or it was never intended by the legislature.
10.3. At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substances. Caffeine is mixed with heroin; it causes heroin to vaporise at a lower rate.
That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal doses of drugs. Take the example of heroin. It is known as a powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that drug dealers will add other drugs or non- intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves. Brown sugar/smack is usually made available in powder form. The substance is only about 20% heroin. The heroin is mixed with other substances like chalk powder and zinc oxide, because of these impurities in the drug, brown sugar is cheaper but more dangerous. These are only a few examples to show and demonstrate that even a mixture of narcotic drugs or psychotropic substances is more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substances and narcotic drugs or psychotropic substances. Therefore, if it is accepted that it is only the actual content by weight of the offending drug which is relevant for determining whether it would constitute a small quantity or commercial quantity, in that case, the object and purpose of the enactment of the NDPS Act would be frustrated. There may be few punishments for "commercial quantity". Certainly, that would not have been the intention of the legislature.
::: Downloaded on - 31/07/2025 21:24:57 :::CIS 11( 2025:HHC:25612 ) 10.4. Even considering the definition of "manufacture", "manufactured drug" and "preparation" conjointly, the total weight of such "manufactured drug" or .
"preparation", including the neutral material, is required to be considered while determining a small quantity or commercial quantity. If it is interpreted in such a manner, then and only then, the objects and purpose of the NDPS Act be achieved. Any other intention to defeat the object and purpose of the enactment of the NDPS Act, viz., to Act is a deterrent.
14. The judgment in Hira Singh (supra) was followed by the Division Bench of the Delhi High Court in Mohd. Ahsan v. Customs, 2022 SCC OnLine Del 2910 and it was held that the weight of a neutral substance cannot be ignored while determining the nature of the quantity seized. It was observed:
"52. In view of the aforesaid decision, the questions
(a) and (b) referred to us are answered as follows:
Question - "(a) whether in cases specifically related to a manufactured drug with a minuscule percentage of a narcotic substance, the weight of the neutral sub- stance ought to be ignored while determining the na-
ture of the quantity seized, i.e. small, commercial or in between?"
Ans: If the contraband seized falls within the provi- sions of the NDPS Act, the weight of the neutral sub- stance would not be ignored while determining the na- ture of the quantity seized, whether small quantity, commercial quantity or in between.
Question - "(b) whether Note 4 of the S.O. 1055(E) dated 19th October 2001 published in the Gazette of In- dia, Extra., Pt.II, Sec. 3(ii) dated 19 th October 2001, as ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 12 ( 2025:HHC:25612 ) amended on 18.11.2009, should be held inapplicable to the manufactured drug which contains a minuscule percentage of a narcotic drug?"
.
Ans: If the alleged contraband seized falls within the definition of 'manufactured drug' under Section 2(xi) of the NDPS Act, then the entire notification, including the aforesaid 'Note 4', will be applicable."
15. This judgment was followed in H.S. Arun Kumar v. State of Goa, 2022 SCC OnLine Bom 4696 , and it was held that the weight of the neutral substance has to be considered while determining the quantity under the NDPS Act. Hence, the weight of blotting paper containing LSD was to be considered for determining the quantity. It was observed: -
"64. There is an express indication in the NDPS Act about taking into account the entire quantity of the drug or the psychotropic substance seized in a case for determining the quantum of punishment and not just the pure drug content alone. This is evident from the following:
(i) The statement of objects and reasons to the amendment Act 16 of 2014, in terms provides that since the NDPS Act duly provides for punishment for the preparation of drugs also, this amendment seeks to clarify the legislative intent to take the entire quantity of drug seized in a case for determining the quantum of punishment and not the pure drug con-
tent. As noted hereafter, "preparation" in relation to a narcotic drug or psychotropic substance specifically includes "mixture" in whatever physical state con- taining one or more such narcotic drugs or psy- chotropic substances. Thus, the legislative intent is clear that the entire quantity of the preparation is to ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 13 ( 2025:HHC:25612 ) be taken into account and weighed for determining the quantum of punishment and not merely the pure drug content for such preparation or mixture;
.
(ii) Section 2 (xx) defines "preparation" in relation to a narcotic drug or psychotropic substance means any one or more such drugs or substances in dosage form or any solution or mixture, in whatever physical state, containing one or more such drugs or sub- stances. Thus, it is evident that "preparation" in- cludes a mixture, in whatever physical state, contain- ing one or more such drugs or substances. So, the L.S.D. and a substance that may or may not be either a drug or a psychotropic substance, i.e., a neutral sub- stance. The definition explicitly provides that such a mixture may be "in whatever physical state", but as long as such a mixture contains one or more such drugs or substances, the same would constitute a "preparation" under Section (xx) of the NDPS Act.
(iii) Section 2 (xxiii) defines "psychotropic sub-
stance" to mean any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psy-
chotropic substances specified in the Schedule. The Schedule at Entry 4 includes L.S.D., L.S.D. 25. There- fore, there is no dispute about the L.S.D. being a psy- chotropic substance. However, Section 2(xxiii) in-
cludes not only a psychotropic substance specified in the Schedule but also a "preparation" of such sub- stance or material included in the list of psychotropic substances specified in the Schedule. As noted earlier, the definition of "preparation" explicitly includes a mixture, in whatever physical state, containing one or more psychotropic substances. Thus, it is clear that a mixture of LSD and blotter would constitute a psy- chotropic substance as defined under Section 2(xxviii) of the NDPS Act.
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(iv) Section 2(xxiii) refers to a list of psychotropic substances specified in the Schedule. As noted earlier, the L.S.D. finds a mention in Entry 4. Entry 111 of this .
Schedule refers to "salts and preparations of the above". This means Entry 111 refers to salts and preparations of the psychotropic substances listed in Entries 1 to 110. A preparation, as noted earlier, would include a mixture containing LSD. Thus, even the preparation of L.S.D. will amount to a psychotropic substance in terms of Section 2(xxiii) of the NDPS Act.
(v) Even the definition of "manufacture" in Section 2(x) includes making or preparation (otherwise than in a pharmacy on prescription) with or containing such drugs or substances. The expression makes it clear that even making a preparation (which includes a mixture) with L.S.D. or containing L.S.D. would con- stitute "manufacture" as defined under Section 2(x) of the NDPS Act.
(vi) Sections 2(xxiiia) and 2(viia) define "small quan-
tity" and "commercial quantity" in relation to nar- cotic drugs and psychotropic substances. In terms of these definition clauses, the Central Government has issued a notification dated 19.10.2001, as amended from time to time. Entry 133 of this Notification specifically refers to L.S.D., L.S.D. 25. However, what is more relevant is Entry 239, which refers to any mixture or preparation with or without a neutral ma- terial or any of the above drugs. From the context, it is apparent that the expression "drugs" would in- clude both the narcotic drugs and psychotropic sub- stances listed in Entries 1 to 238. Therefore, no con- trary contention on this aspect was even raised before us. Thus, it is clear that the Notification contemplates not only the narcotic drugs and psychotropic sub- stances but also any mixture or preparation of with or without neutral material of any of the narcotic drugs ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 15 ( 2025:HHC:25612 ) and psychotropic substances listed in entries 1 to 238 of the Notification.
(vii) The Notification dated 19.10.2001, in the context .
of Entry 239, provides the mode of determining the small or commercial quantity of the mixture or preparation. It provides that the lesser of the small quantity between the quantities given against the re-
spective narcotic drugs or psychotropic substances mentioned above, forming part of the mixture, will have to be considered. The same also applies to the determination of commercial quantities. Note 4 below this Notification is most important because it states that the quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture or any so-
lution or any one or more narcotic drugs or psy- chotropic substances of that particular drug in dosage form or isomer, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.
65. The statutory provisions and the scheme of the NDPS Act referred to above clearly provide, in more places than one place, that the weight of the entire mixture and not just its pure drug content must be taken into account for determining whether the quantity is small, intermediate quantity or a commercial quantity. Moreover, the state- ment of object and reasons for introducing the amendment to the NDPS Act in 2014 explicitly clarifies the legislative intent to take the entire quantity of drug seized in a case for determining the quantum of punishment and not just the pure drug content.
66. This amendment was introduced after the decision of the Division Bench of the Supreme Court in E. Michael Raj v. Narcotics Control Bureau 2008 (5) SCC 161, which held that a pure drug content and not the entire weight of the mixture being relevant is also a significant factor. Ulti-
::: Downloaded on - 31/07/2025 21:24:57 :::CIS 16( 2025:HHC:25612 ) mately, E. Michael Raj (supra) was overruled by Hira Singh (supra). Hira Singh (supra) held that the legal posi- tion before E. Michael Raj (supra) that the entire quantity of .
the drug seized would be relevant to determine the quan-
tum of punishment and not just the pure drug content. Thus, considering the legislative intervention after E. Michael Raj (supra) and the judicial overruling of E. Michael Raj (supra) by Hira Singh (supra), any argument that only the weight of pure LSD is relevant to determining the quantum of punishment would not be sustained.
16. Hence, in view of the judgment of the Hon'ble Supreme Court in Hira Singh's case (supra), the submission that the weight of the paper is not to be calculated while determining the quantity found in possession of the petitioner cannot be accepted.
17. The petitioner was found in possession of 47.79 mg per 11.525 g LSD papers, which is a commercial quantity; therefore, the rigours of Section 37 of the NDPS Act will 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 to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--::: Downloaded on - 31/07/2025 21:24:57 :::CIS 17
( 2025:HHC:25612 )
(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 r 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."
18. 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, ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 18 ( 2025:HHC:25612 ) (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity.
.
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."
19. 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 ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 19 ( 2025:HHC:25612 ) 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 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 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, ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 20 ( 2025:HHC:25612 )
(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 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 ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 21 ( 2025:HHC:25612 ) 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."
20. 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, ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 22 ( 2025:HHC:25612 ) 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 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 ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 23 ( 2025:HHC:25612 ) 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)
23. Based on the above precedent, the test that 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."
21. This position was reiterated in Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891, wherein it was observed:
"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 Criminal Procedure Code, 1973, to be kept in mind, but the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in subsection (1) of Section 37 are that (i) the Public Prosecutor ought to be ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 24 ( 2025:HHC:25612 ) 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.
12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira" (2004) 3 SCC 549, a decision rendered by a Three Judges Bench of this Court, it has been held thus: --
"7. The limitations on granting 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 accused-respondent 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 satisfaction that the accused is not guilty of the alleged offence." [emphasis added]
13. The expression "reasonable ground" came up for discussion in "State of Kerala v. Rajesh" (2020) 12 SCC 122 , and this Court has observed as below:
"20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 25 ( 2025:HHC:25612 ) 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." [emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and 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. Dove-tailed 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 that he is unlikely to commit an offence under the Act while on bail.
22. In the present case, the petitioner was, prima facie, found in possession of a commercial quantity of LSD, and there is ::: Downloaded on - 31/07/2025 21:24:57 :::CIS 26 ( 2025:HHC:25612 ) nothing to show that he will not commit the offence if released on bail. Thus, he has failed to satisfy the requirements of Section 37 .
of the NDPS Act, and is not entitled to bail.
23. No other point was urged.
24. In view of the above, the present petition fails and the same is dismissed.
25. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 31st July 2025 (Shamsh Tabrez) ::: Downloaded on - 31/07/2025 21:24:57 :::CIS