Himachal Pradesh High Court: In a case revolving around the issue as to whether bail could be granted in a case involving recovery of a commercial quantity of charas under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) based on prolonged incarceration and absence of conscious possession, a Single Judge Bench of Rakesh Kainthla, J., dismissed the petition, holding that the twin conditions under Section 37 were not satisfied, and that delay in trial alone could not justify bail in such cases.
Background:
During patrolling duty on 08-11-2023, a car was intercepted, and the police asked the driver to get the documents of the vehicle checked. The driver and the other three people occupying the vehicle appeared frightened. Upon searching the car, 3.670 kilograms of charas were recovered. The police seized the cannabis and arrested the occupants of the vehicle. The charge sheet was filed on 10-04-2024, and the matter was listed before the Trial Court for recording the statements of prosecution witnesses, and the trial has not been completed.
The accused contended that the bar under Section 37 of the NDPS Act would not apply as the recovery of the contraband was effected from the bag, and there was no evidence of the accused’s conscious possession. Further, he had no criminal antecedents. His counsel argued that mere presence in the car was insufficient to connect him with the commission of crime. It was submitted that the accused has been in custody for more than two years, and the prosecution has not completed the evidence.
However, the State contended that the accused was found in possession of a commercial quantity of charas and hence, the rigours of Section 37 of the NDPS Act applied to the present case. Thus, the accused could not claim to be released on bail because of the delay in the progress of the trial.
Analysis and Decision:
The Court relied on State of Rajasthan v. Balchand, (1977) 4 SCC 308, wherein it was held that the normal rule is bail and not jail, but the gravity and heinousness of the crime should weigh with the Court while considering the bail petition.
The Court noted that the accused was occupying the front seat of the vehicle from which the charas was recovered. The Court referred to Madan Lal v. State of H.P., (2003) 7 SCC 465, where it was held that if contraband is recovered from a vehicle, all the occupants would be in conscious possession of the contraband. “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.”.
The Court observed that prima facie the accused was found in possession of 3.670 kilograms of charas, which was a commercial quantity and hence, the rigours of Section 37 of the NDPS Act applied to the present case. The Court referred to Union of India v. Niyazuddin Sk., (2018) 13 SCC 738, where it was observed 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.
The Court also relied on Union of India v. Ajay Kumar Singh, 2023 SCC OnLine SC 346, wherein twin conditions, as laid down in Section 37 of the NDPS Act, for releasing a person accused of an offence involving commercial quantity on bail were discussed, namely:
-
The public prosecutor has been given an opportunity to oppose the bail application; and
-
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 such offence while on bail.
Further, the Court also referred to State of Meghalaya v. Lalrintluanga Sailo, (2024) 15 SCC 36, where it was held that the grant of bail without considering Section 37 of the NDPS Act is impermissible. The Court noted that in the present case, the prosecution had collected sufficient material to, prima facie, connect the accused with the commission of the crime, and there was nothing on record to show that he would not indulge in the commission of an offence if released on bail. Hence, he had not satisfied the twin conditions laid down in Section 37 of the NDPS Act.
On the argument of delay in the progress of the trial entitling the accused to bail, the Court relied on Union of India v. Vijin K. Varghese1, wherein the Supreme Court held that bail cannot be granted on the ground of prolonged incarceration without satisfying the twin conditions laid down under Section 37 of the NDPS Act. “Section 37 enacts a specific embargo on the grant of bail and obligates the Court to record satisfaction on the twin requirements, in addition to the ordinary tests under the Criminal Procedure Code”.
Consequently, the Court, while dismissing the petition, held that it was impermissible to grant bail on the ground of delay alone when the accused had not satisfied the requirements of Section 37 of the NDPS Act.
[Nittu v. State of H.P., Cr. MP (M) No. 2286 of 2025, decided on 24-11-2025]
Advocates who appeared in this case:
For the Accused: Rajiv Rai, Advocate.
For the Respondent: Prashant Sen, Deputy Advocate General.
1. Union of India v. Vijin K. Varghese, Crl.A. No. 004857 / 2025, order dated 13-11-2025.