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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Ashok Kumar - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr. MP (M) Nos. 2903 and 2904 of 2024
Decided On : 25-04-2025
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20, 25, 29, and 37 - Bail application - Petitioners arrested for possession of commercial quantity of Tramadol - Petitioners claimed innocence and roots in society - Police found capsules containing Tramadol in vehicle - Total weight of capsules was 255.816 grams, classified as commercial quantity - Rigours of Section 37 applicable, requiring satisfaction of twin conditions for bail - Court found no reasonable grounds to believe petitioners not guilty or unlikely to commit further offences. (Paras 1, 17, 26)
(B) Bail - Parameters for granting bail in NDPS cases - Court must consider nature of accusations, gravity of offence, and likelihood of tampering with evidence or absconding - The burden lies on the accused to demonstrate that they meet the conditions for bail under Section 37. (Paras 7, 20)
Facts of the case:
The petitioners were arrested for possessing 418 capsules of Proxyvon containing Tramadol, weighing 255 grams, classified as a commercial quantity under the NDPS Act. The police found the capsules during a routine patrol. (Paras 1, 2)
Findings of Court:
The court determined that the petitioners did not satisfy the conditions under Section 37 of the NDPS Act, which mandates that the accused must demonstrate they are not guilty and unlikely to commit further offences while on bail. (Paras 26)
Issues: The main issues were whether the petitioners could be granted bail despite the serious nature of the charges and the quantity of drugs involved. (Paras 1, 26)
Ratio Decidendi: The court ruled that the petitioners failed to meet the twin conditions of Section 37, as there was no evidence to suggest they were not guilty or would not commit further offences if released. (Paras 26)
Result: Petitions dismissed.
JUDGMENT :
Rakesh Kainthla, J.
The petitioners have filed the present petitions seeking regular bail. It has been asserted that the petitioners were arrested vide FIR No. 103 of 2024 dated 9th September 2024 for the commission of offences punishable under sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, registered at Police Station, Chowari District Chamba, HP. The petitioners are innocent and have not committed any offence. They have roots in society, and there is no chance of their absconding. They would abide by the terms and conditions, which the Court may impose. Hence, the petitions.
2. The petitions are opposed by filing a status report, asserting that the police party was on patrolling duty on 9th September 2024. They found a vehicle bearing registration number HP-38D-3555 parked near the juice factory at about 9:50 PM. Two people were sitting inside the vehicle. The police demanded the vehicle's documents. The driver took out his driving license and the vehicle’s registration certificate from the dashboard of the vehicle and hurriedly closed the dashboard. The driver identified himself as Ashok Kumar, and the person sitting beside him identified himself as Akash Mahajan. The police checked the vehicle in the presence of an independent witness and found a carry bag containing 418 capsules of Proxyvon. The police weighed the capsules, and their weight was found to be 255 grams. They seized the capsules and arrested the occupants of the vehicle. The capsules were sent for analysis to FSL, and according to the report, the capsules contained Tramadol. The weight of the capsules was 255.816 grams, and the weight of the powder was 210.678 grams. The police filed the charge sheet after completing the investigation. The matter was listed on 12th March 2025 for recording the statements of prosecution witnesses. An FIR number 80/2012 has been registered against the petitioner, Ashok Kumar. The quantity of the drugs found in the possession of the petitioners is commercial. The petitioners would commit a similar offence if released on bail. Hence, it was requested that the present petitions be dismissed.
3. I have heard Mr. KB Khajuria and Mr PK Verma, learned counsel for the petitioners, Mr. Lokender Kutlehria, learned Additional Advocate General and Mr Prashant Sen, learned Deputy Advocate General for the respondent/State.
4. Mr. K.B. Khajuria, learned counsel for the petitioners, submitted that the petitioners are innocent and they were falsely implicated. The quantity of powder found in the capsules was intermediate, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioners would abide by the terms and conditions, which the Court may impose. Hence, he prayed that the present petitions be allowed and the petitioners be released on bail. He relied upon the judgment of the Kerala High Court in Akash versus State of Kerala 2021:KER:20062 in support of his submission. Mr. P. K. Verma learned counsel also adopted these submissions.
5. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the total weight of the capsules is to be considered while determining the quantity of the drugs. The petitioners were found in possession of a commercial quantity of Tramadol. The rigours of Section 37 of the NDPS Act apply to the present case. The petitioners are unable to satisfy the twin conditions laid down under Section 37 of the NDPS Act. Hence, he prayed that the present petitions be dismissed. Mr. Prashant Sen learned Deputy Advocate General adopted these submissions.
6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
7. 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 as under page 783: -
“Relevant parameters for granting bail
26. While considering as t
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Bail in NDPS commercial quantity cases denied absent court satisfaction of twin Section 37 conditions, even with prolonged incarceration or trial delay; vehicle occupants prima facie in conscious pos....
In NDPS cases involving commercial quantity, strict satisfaction of Section 37 twin conditions mandatory for bail; trial delay or incarceration alone insufficient grounds.
Bail denied in NDPS commercial quantity case as twin conditions under Section 37 unsatisfied; presumptions of culpable mental state and possession under Sections 35 & 54 not rebutted by accused.
In NDPS commercial quantity cases, bail denied absent satisfaction of Section 37 twin conditions: reasonable grounds believing accused not guilty and unlikely to reoffend while on bail.
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