Azad v. State of Himachal Pradesh

Apart from this, the learned counsel appearing for the applicant have given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial.

8. On all these submissions, a prayer has been made to allow the bail application.

9. When, put to notice, police has filed the status report, disclosing therein, that on 26th August, 2024, ASI Yashpal, alongwith other police official, while on patrolling duty, as well as, duty to detect the crime, relating to excise and narcotics, proceeded towards Bhangani, Mehruwala. When, the police party was present at Mehruwala, then, at 4  2026:HHC:19417 about 06.10 pm, he received a secret information qua the fact that three persons, on Motorcycle No. HP 17D 2648, are coming from Bhangani side. In the secret information, the names of those persons have been mentioned as Azad (applicant) and two other Children in Conflict with Law (hereinafter referred to as CCL-1 and CCL-2).

9.1. As per the secret information, one of the CCL was having a black and blue coloured rucksack and in case, the persons, named in the secret information, are nabbed and searched, then large quantity of prohibited capsules could be recovered. The said information, according to the IO, was found to be authentic and reliable, and, in case, efforts were made to get the search warrants, then, in that eventuality, there was every possibility of all the three persons fleeing from there. As such, he complied with the provisions of Section 42 (2) of the NDPS Act and submitted the information to SDPO Paonta Sahib, through Constable Kapil Sharma, No. 575, at 05.30 pm.

9.2. Thereafter, IO had reached Panchayat Office Gojar, where, two persons were found standing on the 5  2026:HHC:19417 road side, who, on inquiry, disclosed their names as Sonu and Anil Kumar. Both of them were apprised about the secret information received by the IO and they were associated as independent witnesses. Thereafter, the IO put the picketing. At about 06.55 pm, as per the information, Motorcycle bearing registration No. HP 17D 2648, being driven by its driver reached there. Three persons were there on the motorcycle. Rider of the motorcycle, on seeing the police, at once, tried to turn back the motorcycle, however, all the three persons were nabbed. On inquiry, they disclosed their names as Azad (applicant); CCL-1 and CCL-2. One CCL was having a black and blue coloured rucksack. The IO checked the motorcycle and rucksack, after giving his personal search to the said persons. Thereafter, in the presence of the witnesses, the bag, which was in the hand of CCL was checked. On checking, the same was found containing 1920 capsules of Spasmo Promax Plus. The same was taken into possession. Other codal formalities were completed and accused-Azad (applicant) was arrested, 6  2026:HHC:19417 whereas, the custody of the CCLs was handed over to their parents/guardians.

9.3. The contraband, so recovered, was sent to SFSL Junga, from where, positive report has been received. After the completion of the investigation, the charge sheet has been filed.

10. On the basis of the above facts, a prayer has been made to dismiss the bail application.

11. The learned Additional Advocate General, in the present case, has pointed out that out of nineteen prosecution witnesses, ten witnesses have been examined. This fact has also not been disputed by the learned counsel for the applicant, rather, this fact has been asserted in para 1 of the bail application.

12. The applicant, in the present case, has been arrested, under the provisions of NDPS Act. The legislature, in its wisdom, has enacted this statute to curb the menace of drug abuse with stringent punishment. Certain conditions are there in the NDPS Act in the shape of Section 37 of NDPS Act, which are, in addition to the conditions, as contained in Section 483 of the BNSS. 7  2026:HHC:19417 Before releasing a person on bail, those conditions, as enumerated under Section 37 of the NDPS Act, are to be fulfilled, if the accused has been arrested for the offence, involving commercial quantity of contraband.

13. Once, it has been held that the contraband allegedly recovered from the possession of the accused (applicant) falls in the category of ‘commercial quantity’, as per the Notification issued by the Central Government, then, the rigors of Section 37 of the NDPS Act come into play.

14. The contraband allegedly recovered from the applicant, in the present case, admittedly, falls within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of NDPS Act are applicable, in this case.

15. When, rigors of Section 37 of the NDPS Act are applicable, in that eventuality, before releasing the applicant, on bail, it is incumbent upon this Court to give findings, with regard to fulfillment of twin conditions, as enumerated, under Section 37(b) of the NDPS Act. These conditions are (i) that the applicant has not committed the offence, for which he has been arrested, and (ii) that while 8  2026:HHC:19417 on bail, he is not likely to commit any offence.

16. The provisions of Section 37 of the NDPS Act, have been discussed and explained by a three-Judge Bench of the Hon’ble Supreme Court, way back in the year 2004, in cases, titled as Collector of Customs, New Delhi versus Ahmadalieva Nodira, reported in (2004) 3 Supreme Court Cases 549, and Narcotics Control Bureau versus Dilip Pralhad Namade, reported in (2004) 3 Supreme Court Cases 619. The relevant paras 9 to 11 of the judgment in Dilip Pralhad Namade’s case (supra), are reproduced, as under: “9. As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995(4) SC 253) clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while 9  2026:HHC:19417 on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act.

11. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained Section 37.”

17. The term ‘reasonable’ has elaborately been discussed by the Hon’ble Supreme Court, in case, titled as Union of India versus Shiv Shanker Kesari, reported in (2007) 7 Supreme Court Cases 798. The relevant paras 8 to 11 of the judgment are reproduced, as under: 10  2026:HHC:19417 “8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. “7. … In Strouds Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word ‘reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy.