Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(HP) 300

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Nisha Devi - Petitioner
Versus
State of HP - Respondent
Cr. MP(M) No. 143 of 2026
Decided On : 12-03-2026

Advocates:
Advocate Appeared:
For the Petitioner:Mr Rajiv Rai, Advocate.
For the Respondent-State:Mr Lokender Kutlehria, Additional advocate General

In NDPS commercial quantity cases, bail requires court satisfaction of twin conditions under Section 37: reasonable grounds accused not guilty and unlikely to reoffend; co-accused confessional statements inadmissible; petitioner failed both.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20, 29, 37, 35 & 54 - Bail in case of commercial quantity (1968 grams charas recovered from bag on petitioner's lap while accompanying father in bus) - Statement of co-accused during investigation inadmissible under CrPC Section 162 r/w Evidence Act Section 25 - Rigours of Section 37 apply mandatorily: court must be satisfied on reasonable grounds that accused not guilty of offence and not likely to commit offence while on bail - Twin conditions cumulative and higher than prima facie - Petitioner fails to rebut presumption of conscious possession or show satisfaction of twin conditions - Humanitarian ground of minor dependent child insufficient - Bail petition dismissed. (Paras 11-24)

(B) Bail - Principles - Normal rule 'bail not jail' overridden by NDPS Section 37 for commercial quantity offences wherein negation of bail is rule and grant exception - Detailed judicial precedents on judicious exercise, non-mechanical orders and factors like nature of offence, evidence, antecedents. (Paras 8-10, 24)

Facts of the case:
Petitioner sought regular bail post charge-sheet in case of recovery of commercial quantity charas from bag on her lap in bus; claimed accompanying father innocently, false implication based on his confessional statement, minor son dependent; prosecution relied on recovery from her possession during naka check, SFSL confirmation.

Findings of Court:
Prima facie material shows possession by petitioner; co-accused statement unusable; commercial quantity attracts Section 37 bar; no satisfaction of twin conditions or safety from reoffending.

Issues: Whether co-accused confessional statement exonerates petitioner; applicability and satisfaction of Section 37 twin conditions despite humanitarian grounds; scope of bail discretion in commercial quantity NDPS cases.

Ratio Decidendi: Court cannot grant bail in commercial quantity NDPS offences without recording satisfaction of Section 37 twin conditions based on substantial probable causes beyond prima facie; co-accused investigative statements inadmissible for prosecution or defence; presumption of possession under Sections 35/54 shifts burden to accused.

Result: Petition dismissed.

Table of Content
1. recovery of commercial charas from petitioner's bag alleged. (Para 2 , 3)
2. bail discretion requires considering offence gravity, antecedents. (Para 4 , 7 , 8 , 9 , 10)
3. petitioner claims innocence; state invokes section 37 rigours. (Para 5 , 6)
4. status report shows prima facie possession of charas. (Para 11)
5. co-accused confession inadmissible under evidence act, crpc. (Para 12 , 13 , 14)
6. commercial quantity charas attracts section 37 ndps. (Para 15 , 16 , 17)
7. section 37 twin conditions mandatory for ndps bail. (Para 18 , 19 , 20 , 21 , 22)
8. twin conditions unsatisfied; ndps bail negation rule. (Para 23 , 24)
9. bail petition dismissed; observations limited to disposal. (Para 25 , 26 , 27)

JUDGMENT :
Rakesh Kainthla, J.

The petitioner has filed the present petition for seeking regular bail in FIR No. 111 of 2025, dated 15.6.2025, registered at Police Station Barmana, District Bilaspur, H.P., for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS).

2. It has been asserted that, as per the prosecution, the petitioner was accompanying her father in a bus. The police recovered 2.42 kilograms of charas from the bag lying on the petitioner’s lap. The police have completed the investigation and filed the charge sheet before the Court. The presence of a lady constable on the spot is highly doubtful. The petitioner’s father revealed during the interrogation that he had prepared the charas from naturally grown cannabis plants, and he was taking them to Nepal for sale. The petitioner was not in possession, as per the statement. The petitioner was residing at Kullu with her seven-year-old son. There is no one to look after him. The petitioner is presumed to be innocent until proved guilty. No fruitful purpose would be served by detaining the petitioner in custody. Hence, 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 had set up a naka on 15.6.2025 at the rain shelter near ACC Check Post Barmana. The police stopped and boarded the bus bearing registration No. HP-18C-4796 at 1:20 AM. The occupant of Seat No.26 acted suspiciously and revealed during the inquiry that he was travelling with his daughter to Chandigarh. The police searched him and the petitioner, who was occupying Seat No.21. The petitioner was found in possession of a bag that contained 2 packets. The police checked the packets and recovered 2 kilograms 42 grams of charas. The police arrested the petitioner and her father. The total weight of charas was found to be 1968 grams during the inventory proceedings. The charas was sent to SFSL, and as per the report, it was confirmed to be an extract of cannabis and a sample of charas. The police filed a charge sheet before the Court on 30.7.2025. Hence, the status report.

4. I have heard Mr Rajiv Rai, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

5. Mr Rajiv Rai, learned counsel for the petitioner, submitted that the petitioner is innocent and that she was falsely implicated. The status report specifically mentions that the petitioner’s father had admitted to the preparation of charas. The police implicated the petitioner falsely without any material. The petitioner has a minor kid dependent upon her. The petitioner would abide by the terms and conditions that the Court may impose. Hence, 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 charas was recovered from a bag being carried by the petitioner. The statement made by the co-accused to the police is for investigative purposes and is inadmissible in evidence. The quantity of charas recovered by the police was commercial, and the rigours of Section 37 of t