Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1711

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Shamina - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr. MP (M) No. 2672 of 2025
Decided On : 03-12-2025

Advocates:
Advocate Appeared:
For the Petitioner:Mr K.S. Gill, Advocate
For the Respondent/State:Mr Jitender Sharma, Additional Advocate General, assisted by HC Kuldeep

In NDPS commercial quantity cases, residence in house with contraband recovery from common area establishes prima facie possession; bail denied as twin conditions under Section 37 not satisfied despite housewife status and trial delay.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act - Sections 22, 29, 37, 35, 54 - Bail in offences involving commercial quantity - Recovery of contraband capsules containing Alprazolam and Tramadol from drawer of double bed in house where petitioner resided with husband - Prima facie conscious possession of petitioner as resident established, shifting burden under presumptions - Secret information about husband selling capsules inadmissible as hearsay - Wife's status as housewife and normal presence in house insufficient to rebut possession - Rigours of Section 37 mandatorily applicable; twin conditions requiring reasonable grounds for believing not guilty and not likely to reoffend while on bail not satisfied - Delay in trial or prolonged custody alone cannot justify bail without satisfying Section 37 - Petition dismissed. (Paras 10, 11, 14, 15, 21, 22)

(B) Grant of bail - Principles - Courts to consider nature of accusation, evidence, punishment severity, risk of tampering or reoffending, antecedents; not mechanical or as matter of course - Detailed parameters from Supreme Court including prima facie satisfaction without full merits appraisal. (Para 8)

Facts of the case:
Petitioner filed for regular bail in FIR for NDPS offences after raid on house post secret information, recovery of commercial quantity contraband from carry bag in double bed drawer in presence of petitioner and husband; both arrested; charge sheet filed, trial listed for evidence; prior acquittal in old case.

Findings of Court:
Prima facie material connects petitioner to crime; no satisfaction of twin conditions under Section 37; bail petition dismissed; observations limited to bail disposal.

Issues: Whether petitioner had conscious possession merely by residing in house; admissibility and effect of secret information; satisfaction of Section 37 twin conditions for commercial quantity offences; entitlement to bail on trial delay.

Ratio Decidendi: Residence in house with contraband in common area like bed drawer constitutes prima facie joint possession invoking presumptions; secret information inadmissible; Section 37 twin conditions cumulative and mandatory, requiring more than prima facie grounds; housewife status or prior acquittal inadequate; delay irrelevant without satisfying conditions.

Result: Bail petition dismissed.

Table of Content
1. ndps commercial quantity recovered from petitioner's house (Para 1 , 2 , 3)
2. arguments on possession liability and section 37 (Para 4 , 5 , 6)
3. supreme court bail grant parameters outlined (Para 7 , 8 , 9)
4. joint residence presumes conscious ndps possession (Para 10 , 11)
5. secret information inadmissible as hearsay evidence (Para 12 , 13)
6. commercial quantity invokes section 37 restrictions (Para 14 , 15)
7. twin conditions mandatory for ndps bail (Para 16 , 17 , 18 , 19 , 20)
8. petitioner fails section 37 twin conditions (Para 21)
9. delay does not override section 37 rigours (Para 22 , 23)
10. bail petition dismissed; observations limited (Para 24 , 25 , 26)

JUDGMENT :
Rakesh Kainthla, Judge

The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 197 of 2024, dated 5.12.2024, registered at Police Station, Majra, District Sirmour, H.P., for the commission of offences punishable under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

2. It has been asserted that the police officials raided the petitioner’s house after sunset and before sunrise and arrested her without obtaining prior permission from the Court. The petitioner has been in judicial custody since 5.12.2024. She has no connection with the commission of the offence, and she was falsely implicated. The prosecution has failed to prove the conscious possession of the petitioner. The petitioner is a housewife, and her presence in the house was normal. There is no evidence to show that she had conspired with her husband for the possession of the contraband. The petitioner would abide by the terms and conditions that the Court may impose. Hence the petition.

3. The petition is opposed by filing a status report asserting that the police were on patrolling duty on 4.12.2024. They received secret information at 6.45 PM that Shaukat Ali was selling the narcotic capsules from his house, and a huge quantity of the narcotics could be recovered during the search of the house. The information was credible. It was reduced to writing and was sent to the superior officer. The police associated Firoz Khan and Akhtar Ali and went to the house of Shaukat Ali. The police searched his house in his presence and in the presence of the petitioner and recovered 400 tablets of Alprazolam, 240 capsules of Spasmed, 120 capsules of Spasmed, 360 capsules of Parvion Spas and 400 capsules of Parvion Spas Plus. The weight of Alprazolam was found to be 0.260 grams, the weight of Spas Med was found to be 0.20 grams, and the weight of Spas Med 400 capsules was found to be 0.228 grams. The police seized the capsules and arrested Shaukat Ali and the petitioner. The capsules were sent to FSL, and Spasmed Plus, Parvion Spas and Parvion Spas Plus indicated the presence of Tramadol. The capsules of Alprazolam indicated the presence of Alprazolam. An FIR No.70/13, dated 17.2.2013, was registered against the petitioner, in which she was acquitted. A charge sheet has been filed before the Court. Statements of five witnesses have been recorded, and the matter is listed for evidence on 29.12.2025.

4. I have heard Mr K.S. Gill, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State.

5. Mr K.S. Gill, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated based on the fact that she knew about the possession of the capsules by her husband. She was not found in possession of any contraband. The wife cannot be held liable for the actions of her husband. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

6. Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State, submitted that a commercial quantity of contraband was recovered from the house in which the petitioner was residing. The petitioner was in joint possession of the contraband. Rigours of Section 37