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Himachal Pradesh High Court in its order denying Bail to an accused under NDPS Act, 1985, observed that being in custody for more than one and a half year is not a legal ground to overcome the rigors of Section 37, NDPS Act, 1985. The petitioner was incarcerating upon arrest for possessing commercial quantity of 1 Kg 855 grams Charas.

Justice Anoop Chitkara, while dismissing the bail application with liberty to file afresh on different grounds/same cause of action, said,

“A perusal of the bail petition does not point out that petitioner was not present there at the spot. Accordingly, the reverse burden is on the accused.

Thus given the commercial quantity involved, the rigors of Section 37 of the NDPS Act is on the accused to at least explain that what he was doing with the main accused at such odd hours during lockdown.”

Reliance was placed on Satinder Kumar v. State of HP, Cr. MP (M) No. 391 of 2020, decided on August 4, 2020, wherein the Court said that in order to get bail in commercial quantity of substance, the accused must meet the twin conditions of S.37.

Section 37 reads as following:

Offences to be cognizable and non-bailable — (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 —

1. every offence punishable under this Act shall be cognizable;
2. no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless —

• the Public Prosecutor has been given an opportunity to oppose the application for such release, and
• Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

Court said that the petitioner has not stated anything to discharge the rigors of S.37 NDPS Act and therefore no case for bail was made out.

Case Title: Sanjeev Kumar v. State of HP