Dharmraj Dhami v. State of Uttarakhand

bail in connection with FIR No. 0181 of 2024, registered at Police Station Raipur, District Dehradun, for offences punishable under Sections 8, 20, 29, and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”). The applicant was arrested on 28.04.2024 and has remained in judicial custody since then.

2. As per the case of the prosecution, on 27.04.2024, acting on prior information, the police searched a rented premises allegedly occupied by co-accused Ayush Rawat, during which 2.130 kilograms of Charas was recovered from a cupboard in one of the rooms. The applicant was allegedly found present at the said premises at the time of the search.

3. Heard Mr. Himanshu Pal, learned counsel for the Applicant, and Mr. Vikash Uniyal, learned Brief Holder for the State. Perused the records. First Bail Application No. 635 of 2025, “Dharmraj Dhami vs. State of Uttarakhand”. Ashish Naithani, J. 2 Learned counsel for the applicant, while pressing for

4. bail, submitted that the applicant is innocent and has been falsely implicated. It was argued that 2.130 kilograms of Charas was not recovered from the applicant's physical possession, nor was the premises from which it was seized owned or rented by him. The room was stated to be rented by co-accused Ayush Rawat, and the applicant’s mere presence does not amount to "conscious possession" under the NDPS Act.

5. It was further contended that mandatory safeguards under Sections 42, 50, and 52A of the NDPS Act were not followed. There was no prior written authorisation or recorded reasons for urgency, and the inventory of the seized substance was not certified by a Magistrate as required under Section 52A(2), causing serious prejudice to the applicant.

6. Additionally, the only material connecting the applicant to the offence is the statement of co-accused Ayush Rawat under Section 67, which, as held in Tofan Singh v. State of Tamil Nadu [(2020) 9 SCC 1], is inadmissible if recorded by a police officer and, in the absence of corroboration, cannot justify denial of bail.

7. In response, learned counsel for the State opposed the bail plea, arguing that the quantity recovered exceeds the commercial threshold, attracting the bar under Section 37 of the NDPS Act. The applicant’s presence at the spot gives rise to a presumption under Section 54, which he has not rebutted. The claim that the premises belonged to the co-accused does not rule out conscious possession and remains a matter for trial.

8. The State further submitted that procedural lapses are not conclusively established and that compliance with Sections 42 and 50 is reflected in the documents with the First Bail Application No. 635 of 2025, “Dharmraj Dhami vs. State of Uttarakhand”. Ashish Naithani, J. 3 charge sheet. Minor irregularities, if any, do not vitiate proceedings when a commercial quantity is involved. As for the co-accused’s statement, while not substantive evidence, it may be considered at the bail stage as part of the investigative record.

9. The contraband allegedly recovered, i.e., 2.130 kilograms of Charas, exceeds the threshold of commercial quantity under the NDPS Act. Consequently, the statutory bar under Section 37(1)(b) of the Act becomes operative, which requires the Court to be satisfied on two counts: (i) That there are reasonable grounds for believing that the accused is not guilty of such offence, and (ii) That he is not likely to commit any offence while on bail.

10. The burden to satisfy these twin conditions lies squarely on the applicant, and at this stage, such a threshold has not been met. Given the prima facie evidence against the applicant, including forensic confirmation, witness testimonies, and recovery from his possession, the court cannot conclude that he meets these stringent requirements.

11. While it is correct that the alleged recovery was not made from the physical possession of the applicant but from a cupboard inside a room reportedly rented by a co-accused, it is equally undisputed that the applicant was present at the site at the relevant time.

12. The nature of possession under the NDPS Act is not restricted to physical custody alone. The concept of conscious possession, as recognised in Section 54 of the NDPS Act, introduces a rebuttable presumption that can only be displaced through cogent material. First Bail Application No. 635 of 2025, “Dharmraj Dhami vs. State of Uttarakhand”. Ashish Naithani, J. 4 The applicant’s claim that he neither owned nor

13. rented the premises may cast doubt, but it is not sufficient to dislodge the statutory presumption at this initial stage. Whether or not he exercised dominion or control over the contraband is a matter that squarely falls within the realm of evidence and is not suitable for pre-trial determination.

14. The procedural irregularities highlighted by the learned counsel, such as alleged non-compliance with Sections 42, 50, and 52A of the Act, are contested questions of fact and law. These provisions, no doubt, incorporate mandatory safeguards; however, whether they were breached in a manner that would render the search and seizure vitiated cannot be adjudicated conclusively at this stage.

15. The materials on record do not, at this stage, disclose such glaring or incurable procedural violations as would, by themselves, override the statutory embargo under Section 37 of the NDPS Act. Alleged lapses in compliance with Sections 42, 50, or 52A, even if assumed arguendo, do not prima facie appear to vitiate the entire recovery or prosecution to an extent warranting bail in the face of a commercial quantity recovery.

16. As for the confessional statement of co-accused Ayush Rawat, while such a statement under Section 67 is inadmissible as substantive evidence if made to a police officer, it is not entirely irrelevant. It may be considered at the prima facie stage along with other material, subject to proper evaluation at trial.

17. While the applicant invokes the principle of parity with co-accused Ayush Rawat, who has been enlarged on bail by this Court, such relief cannot be claimed as a matter of course. The principle of parity is not absolute and must yield to factual distinctions that are material judicial First Bail Application No. 635 of 2025, “Dharmraj Dhami vs. State of Uttarakhand”. Ashish Naithani, J. 5 determination under Section 37 of the NDPS Act. In the present case, the applicant, a citizen of Nepal, distinguishable in material respects.

18. Unlike co-accused Ayush Rawat, an Indian citizen with an ascertainable residence, traceable antecedents, and amenability to local jurisdiction, the present applicant enjoys the benefit of an open-border regime with India, under which Nepalese nationals are not required to possess a passport or visa for entry or exit. There is no system of routine immigration checks at Indo-Nepal land borders, and no formal record cross-border movement exists. In circumstances, the risk of the applicant absconding and evading trial is not merely theoretical—it is both real and legally irreparable.

19. This Court is conscious that foreign nationality per se is not a disqualification for bail. However, where the legal framework does not provide any enforceable control over cross-border movement, as is the case with Indo-Nepal travel, traditional safeguards such as personal bonds and sureties are rendered ineffective. The Hon’ble Supreme Court in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, has emphasized that the twin conditions under Section 37(1)(b) of the NDPS Act must be satisfied independently and cumulatively.

20. Further, in State of Kerala v. Rajesh, (2020) 12 SCC 122, the Hon’ble Supreme Court reiterated that the bar under Section 37 is a restriction on the grant of bail and not a mere formality. The Court categorically held that: “The limitations on granting of bail come into operation only on the satisfaction of the twin conditions laid down in Section 37(1)(b)(i) & (ii)... the burden lies on the accused to satisfy the court that there are reasonable grounds for First Bail Application No. 635 of 2025, “Dharmraj Dhami vs. State of Uttarakhand”. Ashish Naithani, J. 6 believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail.”

21. This Court also finds instructive the decision in Mohd. Salim v. State of Rajasthan, 2008 SCC OnLine Raj 2868, where the Rajasthan High Court refused to grant bail to a foreign national under the NDPS Act, precisely on the ground that his continued presence for trial could not be effectively secured due to cross-border enforcement limitations. Though the applicant in that case was a Pakistani citizen, the underlying principle of unenforceable court supervision over certain foreign nationals equally applies to the present factual scenario.

22. Given the seriousness of the allegations, the recovery of a commercial quantity of contraband, and the absence of any effective mechanism to ensure the applicant's continued presence in the country, this Court is unable to record satisfaction under either of the two limbs of Section 37(1)(b) of the NDPS Act. The applicant's open-border nationality, absence of verifiable Indian ties, and the lack of institutional safeguards against his flight risk tilt the balance against the grant of bail. The risk to the integrity of the trial process, if the applicant absconds, outweighs any consideration of interim liberty at this stage. ORDER In light of the seriousness of the allegations, the risk of evidence tampering, and the statutory bar under the NDPS Act, the bail application is dismissed, and the applicant shall remain in judicial custody pending trial. Dt: 16.05.2025 SB ___________________ ASHISH NAITHANI, J. First Bail Application No. 635 of 2025, “Dharmraj Dhami vs. State of Uttarakhand”. Ashish Naithani, J.