Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1639

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Bali Ram - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr. MP(M) No. 2308 of 2025
Decided On : 14-11-2025

Advocates Appeared:
For the Petitioner:M/s Rahul Kumar & Rajat Thakur, Advocates.
For the Respondent:Mr Jitender Sharma, Additional Advocate General.

Bail in NDPS commercial quantity cases requires satisfying Section 37 twin conditions. Red-handed contraband recovery obviates formal grounds of arrest communication if no prejudice shown via arrest memo and circumstances.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20, 25 & 29 r/w Section 37 - Bail application in case involving commercial quantity of contraband - Prima facie possession from vehicle driven by petitioner established through recovery during search at checkpost in presence of independent witnesses - Twin conditions under Section 37 viz. reasonable grounds to believe accused not guilty and not likely to commit offence on bail, not satisfied - Rigours of Section 37 mandatory and override general bail principles - Bail rejected. (Paras 10-17)

(B) Constitution of India - Article 22 - Communication of grounds of arrest - Not required where accused caught red-handed with contraband as crime patent; arrest memo mentioning offence suffices; no prejudice caused despite alleged non-communication, as accused aware of reasons - Procedural lapse curable absent demonstrable prejudice; plea of illegal arrest rejected. (Paras 18-25)

(C) Bail orders - Observations prima facie and confined to bail disposal; no prejudice to trial merits; trial court free to decide on evidence. (Paras 29-31)

Facts of the case:
Petitioner sought regular bail in case of recovery of 1.466 kgs commercial quantity charas from vehicle he was driving, intercepted at checkpost; another occupant present; search before witnesses; contraband sent for forensic analysis confirming charas; charge sheet filed; in custody over 8 months without trial commencement; trial court rejected bail applying Section 37.

Findings of Court:
Petition fails; dismissed; observations limited to bail petition.

Issues: Whether twin conditions under Section 37 satisfied for bail grant; whether non-communication of grounds renders arrest illegal entitling to bail; effect of prima facie observations on trial.

Ratio Decidendi: For NDPS commercial quantity offences, courts must strictly apply Section 37 twin conditions beyond CrPC bail norms; red-handed recovery with awareness via circumstances and arrest memo negates need for separate grounds communication absent prejudice; obiter of Supreme Court binding.

Result: Bail petition dismissed.

Table of Content
1. bail petition after commercial charas recovery from vehicle. (Para 2 , 3)
2. petitioner alleges illegal arrest; state stresses s37 conditions. (Para 4 , 5 , 6)
3. bail requires judicious application of sc principles. (Para 7 , 8 , 9)
4. commercial quantity triggers s37 ndps rigours. (Para 10 , 11)
5. s37 twin conditions mandatory for ndps bail. (Para 12 , 13 , 14 , 15 , 16)
6. petitioner fails s37 not guilty and no reoffend tests. (Para 17)
7. red-handed arrest excuses formal grounds communication. (Para 18 , 19 , 20 , 21)
8. sc obiter dicta binding on high courts. (Para 22 , 23 , 24)
9. art22 substantial compliance suffices absent prejudice. (Para 25 , 26 , 27 , 28)
10. bail observations confined; petition dismissed. (Para 29 , 30 , 31)

JUDGMENT :

Rakesh Kainthla, J.

The petitioner has filed the present petition for seeking regular bail, in FIR No. 131 of 2024, dated 17.11.2024, registered at Police Station Palampur, District Kangra, H.P., for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. It has been asserted that the grounds of arrest were not communicated to the petitioner. The petitioner has remained in custody for over 8 months without the effective commencement of trial. His custody amounts to illegal pre-trial detention, which is violative of Article 21 of the Constitution of India. Learned Trial Court denied the bail because the commercial quantity was involved without considering the fundamental constitutional violation underlying the arrest itself. The learned Trial Court erred in conflating the arrest memos with the grounds of arrest. The mere existence of an arrest memo is not sufficient, and the grounds of arrest are to be communicated. The petitioner has a constitutional right to get grounds of arrest, and the statutory bar contained in Section 37 of the NDPS Act cannot override the provisions of the Constitution. The petitioner would abide by 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 police had set up a naka at Chadiyar Chowk on 18.09.2025. A vehicle bearing registration No. HP-66A-4741 came to the spot, and the driver identified himself as Bali Ram. The person sitting beside the driver identified himself as Chet Ram. The police demanded the papers of the vehicle, and the driver got frightened. The police searched the vehicle in the presence of Vinay Kapoor and Rohit. They recovered one plastic bag containing some articles and a packet wrapped with Khakhi Tape. The police opened the packet and found 1.466 kgs of charas in it. The police arrested the occupants of the vehicle. The charas was sent to the State Forensic Science Laboratory (SFSL), Junga and as per the result of analysis, it was an extract of cannabis and a sample of charas. The petitioner would indulge in the commission of a crime in case of his release on bail. The charge sheet was filed before the Court on 19.03.2025. Hence, the status report.

4. I have heard M/s Rahul Kumar and Rajat Thakur, learned counsel for the petitioner and Mr Jitender Kumar Sharma, learned Additional Advocate General for the respondent/State.

5. Mr Rahul Kumar, learned counsel for the petitioner, submitted that this Court had mentioned in the order dated 09.10.2025 that the petitioner was caught red-handed with the contraband. This finding cannot be given at this stage and is to be given at the time of conclusion of the trial. The police are supposed to comply with the requirements of Article 22 of the Constitution of India, and they cannot claim a substantial compliance or the lack of prejudice. The State had relied upon the judgment of Madhu Limaye, In re, (1969) 1 SCC 292, but the observations made by the Hon’ble Supreme Court are in the nature of obiter and not binding upon this Court. He relied upon the judgments of the Hon’ble Supreme Court in State of Delhi vs. Ra