# Dheeraj Kumar Shukla v. State of U.P

- **Citation:** (2022) 6 ILRA 1042
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** Criminal Misc. 2nd Bail Application No. 45253 of 2021
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dheeraj-kumar-shukla-v-state-of-u-p-48626
- **Pages:** 15

## Headnote

A. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37 --- The power to grant bail to a
person accused of having committed offence
under the NDPS Act is not only subject to the
limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973, it is also
subject to the restrictions placed by sub-clause
(b) of subsection (1) of Section 37 of the NDPS
Act. Apart from giving an opportunity to the
Public Prosecutor to oppose the application for
such release, the other twin conditions viz; (i)
the satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty of the alleged offence; and
(ii) that he is not likely to commit any offence
while on bail, have to be satisfied. It is manifest
that the conditions are cumulative and not
alternative.
The
satisfaction
contemplated
regarding the accused being not guilty, has to
be based
on "reasonable grounds". The
expression `reasonable grounds' has not been
defined in the said Act but means something
more than prima facie grounds. It connotes
substantial probable causes for believing that
the accused is not guilty of the offence he is
charged with.

B. While considering an application for bail with
reference to Section 37 of the NDPS Act, the
Court is not called upon to record a finding of
'not guilty'. At this stage, it is neither necessary
nor
desirable
to
weigh
the
evidence
meticulously to arrive at a positive finding as to
whether or not the accused has committed
offence under the NDPS Act. What is to be seen
is whether there is reasonable ground for
believing that the accused is not guilty of the
offence(s) he is charged with and further that
he is not likely to commit an offence under the
said Act while on bail. The satisfaction of the
Court about the existence of the said twin
conditions is for a limited purpose and is
confined to the question of releasing the
6 All. Dheeraj Kumar Shukla Vs. State of U.P.
1043
accused on bail. Although it is established that a
court considering a bail application cannot
undertake a detailed examination of evidence
and an elaborate discussion on the merits of the
case, the court is required to indicate the prima
facie reasons justifying the grant of bail. Merely
recording "having perused the record" and "on
the facts and circumstances of the case" does
not subserve the purpose of a reasoned judicial
order. Though detail evaluation of facts on merit
is not permissible, but the Court granting bail
cannot obviate its duty to apply its judicial mind
and to record reasons, brief as they may be, for
the purpose of deciding whether or not to grant
bail.

C. Bail orders of the Coordinate Benches,
which have been passed without giving
reason on merit and without taking note of
limitations provided under Section 37 of the
N.D.P.S. Act in cases of a recovery of
contraband of commercial quantity have no
persuasive value and the same is not binding
upon this Court. A judge is not bound to grant
bail to an accused on the ground of parity
even where the order granting bail to an
identically placed co-accused contains no
cogent reasons or if the same has been
passed in flagrant violation of well established
principle of law. If any illegality is brought to
the knowledge of the Court, the same should
not be permitted to perpetuate. It is also well
settled that no judge is obliged to pass orders
against his conscience merely to maintain
consistency.

D. Long detention may be relevant for grant of
bail in matters arising out of conviction under
Penal Code etc., but are not sufficient to satisfy
the mandatory requirements as stipulated in
clause (b) of sub-Section (1) of Section 37 of
the N.D.P.S. Act. Mere long detention in jail does
not entitle an accused to be enlarged on bail
pending trial.

E. Fresh arguments in a second bail application
for an accused cannot be allowed to be
advanced on those very facts that were
available to the accused while th

## Text

_Characters 0–39,981 of 49,074. This is a partial read: ask again with offset=39981 for what follows._

1042 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow and Director General of Police,
U.P., Lucknow, it is evident that steps are
being taken for early examination of
samples
by
the
Forensic
Science
Laboratory. This Court has no reason and
occasion to doubt the same. The efforts as
enumerated in both the affidavits are
expected to be seriously and effectively
undertaken so that the samples at the
Forensic Science Laboratory are examined
in an expeditious manner. This Court hopes
and
trusts
that
the
efforts
of
the
Government in setting up additional
laboratories and making them functional
will continue in its true spirit and will yield
positive
results
enabling
expeditious
examinations of samples which would lead
to expeditious investigations and trials.
Even the steps for gearing up the
infrastructure of existing ones will also be
taken care with all efficacy and interest.

12. The Registrar General of this
Court and the learned counsel for the State
shall communicate this order to the
Secretary (Home), Government of U.P.,
Lucknow and Director General of Police,
U.P., Lucknow for necessary information
forthwith.

13. The present bail application is
thus consigned to records.
---------
(2022)06ILR A1042
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. 2nd Bail Application No. 45253 of
2021

Dheeraj Kumar Shukla ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Chandra Shekhar Mishra

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Section 37 --- The power to grant bail to a
person accused of having committed offence
under the NDPS Act is not only subject to the
limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973, it is also
subject to the restrictions placed by sub-clause
(b) of subsection (1) of Section 37 of the NDPS
Act. Apart from giving an opportunity to the
Public Prosecutor to oppose the application for
such release, the other twin conditions viz; (i)
the satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty of the alleged offence; and
(ii) that he is not likely to commit any offence
while on bail, have to be satisfied. It is manifest
that the conditions are cumulative and not
alternative.
The
satisfaction
contemplated
regarding the accused being not guilty, has to
be based
on "reasonable grounds". The
expression `reasonable grounds' has not been
defined in the said Act but means something
more than prima facie grounds. It connotes
substantial probable causes for believing that
the accused is not guilty of the offence he is
charged with.

B. While considering an application for bail with
reference to Section 37 of the NDPS Act, the
Court is not called upon to record a finding of
'not guilty'. At this stage, it is neither necessary
nor
desirable
to
weigh
the
evidence
meticulously to arrive at a positive finding as to
whether or not the accused has committed
offence under the NDPS Act. What is to be seen
is whether there is reasonable ground for
believing that the accused is not guilty of the
offence(s) he is charged with and further that
he is not likely to commit an offence under the
said Act while on bail. The satisfaction of the
Court about the existence of the said twin
conditions is for a limited purpose and is
confined to the question of releasing the
6 All. Dheeraj Kumar Shukla Vs. State of U.P.
1043
accused on bail. Although it is established that a
court considering a bail application cannot
undertake a detailed examination of evidence
and an elaborate discussion on the merits of the
case, the court is required to indicate the prima
facie reasons justifying the grant of bail. Merely
recording "having perused the record" and "on
the facts and circumstances of the case" does
not subserve the purpose of a reasoned judicial
order. Though detail evaluation of facts on merit
is not permissible, but the Court granting bail
cannot obviate its duty to apply its judicial mind
and to record reasons, brief as they may be, for
the purpose of deciding whether or not to grant
bail.

C. Bail orders of the Coordinate Benches,
which have been passed without giving
reason on merit and without taking note of
limitations provided under Section 37 of the
N.D.P.S. Act in cases of a recovery of
contraband of commercial quantity have no
persuasive value and the same is not binding
upon this Court. A judge is not bound to grant
bail to an accused on the ground of parity
even where the order granting bail to an
identically placed co-accused contains no
cogent reasons or if the same has been
passed in flagrant violation of well established
principle of law. If any illegality is brought to
the knowledge of the Court, the same should
not be permitted to perpetuate. It is also well
settled that no judge is obliged to pass orders
against his conscience merely to maintain
consistency.

D. Long detention may be relevant for grant of
bail in matters arising out of conviction under
Penal Code etc., but are not sufficient to satisfy
the mandatory requirements as stipulated in
clause (b) of sub-Section (1) of Section 37 of
the N.D.P.S. Act. Mere long detention in jail does
not entitle an accused to be enlarged on bail
pending trial.

E. Fresh arguments in a second bail application
for an accused cannot be allowed to be
advanced on those very facts that were
available to the accused while the first bail
application was moved and rejected.

Application dismissed. (E-12)

List of Cases cited:-

1. Varinder Kumar Vs St. of H.P., (2020) 3 SCC
321,

2. Kallu Khan Vs St. of Raj., 2021 SCC OnLine
SC 1223

3. Dayalu Kashyap Vs St. of Chattisgarh, 2022
SCC OnLine SC 334

4. Chandigarh Administration & anr. Vs Jagjit
Singh & anr., AIR 1995 SC 705

5. Rakesh Kumar Pandey Vs Munni Singh @
Mata Bux Singh & anr. Special Leave Petition No.
4059 of 2000

6. Satyendra Singh Vs St. of U.P., 1996 A.Cr.R.
867

7. U.O.I. Vs Rattan Mallik @ Habul, 2009 (1)
SCC (Crl) 831

8. U.O.I. Vs Ram Samujh, (1999) 9 SCC 429

9. U.O.I. Vs Shiv Shankar Kesari, (2007) 7 SCC
798

10. St. of Kerala Etc. Vs Rajesh Etc. AIR 2020
Supreme Court 721

11. U.O.I. Vs Prateek Shukla (Crl.A. No.
284/2021), AIR 2021 SC 1509

12. The St. (NCT of Delhi) Narcotics Control
Bureau Vs Lokesh Chadha, (2021) 5 SCC 724

13. Narcotics Control Bureau Vs Laxman Prasad
Soni, Etc. (Criminal Appeal Nos. 438-440 of
2021
decided
by
the
Apex
Court
on
19.04.2021).

14. U.O.I. Vs Vimla Singh (Criminal Appeal No.
862 of 2021)(SC)(Decided on 19.08.2021)

15. U.O.I. through Narcotics Control Bureau,
Lucknow Vs Md. Nawaz Khan, (2021) 10 SCC
100

16. Kalyan Chandra Sarkar Vs Rajesh Ranjan @
Pappu Yadav & anr., (2004) 7 SCC 528
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
17. Sonu Vs Sonu Yadav & anr., 2021 SCC
OnLine SC 286

18. Ms Y Vs St. of Raj. & anr., 2022 SCC OnLine
SC 458

19. Mahipal Vs Rajesh Kumar @ Polia & anr.,
(2020) 2 SCC 118

20. Manoj Kumar Khokhar Vs St. of Raj. & anr.,
(2022) 3 SCC 501

21. Vijay Kumar Vs Narendra & ors., (2002) 9
SCC 364

22. Ramesh Kumar Singh Vs Jhabbar Singh &
ors., 2004 SCC (Cri) 1067

23. Girand Singh Vs St. of U.P., (2010) 69 ACC
39

24. Rajesh Ranjan Yadav @ Pappu Yadav Vs CBI
through 21 its Director reported in (2007) 1 SCC
70

25. Satya Pal Vs St. of U.P., (1998) 37 ACC 287
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1- This is second bail application
moved on behalf of the applicant. The first
bail application of the applicant has been
rejected by detailed order dated 06.07.2021
passed in Criminal Misc. Bail Application
No. 42092 of 2020.

2- By means of this second bail
application, the applicant-Dheeraj Kumar
Shukla, who is involved in Case Crime No.
0325 of 2020, under Sections 8/20 of
Narcotic Drugs & Psychotropic Substances
Act (hereinafter referred to as "N.D.P.S.
Act"),
police
station
Jhunsi,
district
Prayagraj, is seeking enlargement on bail
during the pendency of trial.

3- Heard Mr. Chandra Shekhar
Mishra, learned counsel for the applicant,
Mr. Virendra Kumar Maurya, learned
Additional Government Advocate assisted
by Mr. Prashant Kumar Singh, learned
Brief holder appearing on behalf of State of
U.P. and perused the record.

4- In short compass, the facts of the
case as per prosecution case are that on the
information of informer, two vehicles white
coloured Swift Dzire car and grey coloured
Honda City car were intercepted on
23.06.2020 by the police team using
necessary force and persons sitting in the
vehicles were pulled out. On questioning,
they disclosed about transportation of
illegal Ganja in the said vehicles. On
interrogation at the spot, the apprehended
accused persons, who were sitting in Honda
City car, disclosed their names as Praveen
Maurya alias Punit Maurya (owner),
Rishabh
Kumar
(Driver)
and
Dhiraj
Maurya, whereas person, who was driving
Swift Dzire car disclosed his name as
Dheeraj Kumar Shukla (applicant). The
accused were enlightened about their legal
rights to be searched before a Gazetted
Officer, to which they declined and gave
their consent saying that informant may
take their search. Accordingly, they were
searched, but no contraband was recovered
from their personal search, except mobile
phones and some cash amount etc. as
mentioned in the recovery memo. On
taking search of aforesaid vehicles, total
92.410 Kgs. of Ganja were recovered from
the dicky of Honda City car bearing No.
MH 04 AF 0076 and 65.160 Kgs. of Ganja
were recovered from the dicky of Swift
Dzire car bearing No. UP 70 EW 0246. As
such, total 157.570 Kgs of illegal Ganja
have been recovered in this case. Accused
persons could not show the authorization
for keeping and transporting the same.
Separate samples of about 100-100 grams
each of Ganja were taken out from each
6 All. Dheeraj Kumar Shukla Vs. State of U.P.
1045
packets, thereafter samples and remaining
Ganja as well as other recovered materials
were separately sealed in white cloths.
Specimens of seal were prepared. Accused
persons disclosed that they have been
engaged in the trafficking of Ganja since
last several years. They also disclosed that
they purchased the Ganja from one Hari,
resident of Kodpad, Odisha and will sell
the same on higher price in Prayagraj. Both
the aforesaid vehicles were also seized.
Contents of recovery memo were explained
to the accused persons and after taking their
signatures, copy of recovery memo was
handed over to them. On the basis of
aforesaid recovery, a case was registered
against the accused persons at Case Crime
No. 0325 of 2020, under section 8/20 of
N.D.P.S. Act, police station Jhunsi, district
Prayagraj.

5- It is submitted by learned counsel
for the applicant that instant second bail
application has been moved mainly on the
following two new grounds:-

(i)- After rejection of first bail
application of the applicant on 06.07.2020,
co-accused Sonoo Shukla and Praveen
Maurya @ Puneet Maurya have been
granted bail by the Coordinate Bench of
this Court vide orders dated 14.07.2021 and
14.09.2021
in
Criminal
Misc.
Bail
Application Nos. 20323 of 2021 and 44698
of
2020
respectively,
therefore,
the
applicant is also entitled to be released on
bail on the ground of parity.

(ii)- Applicant is in jail but trial is
not proceeding effectively.

6- Per-contra, learned Additional
Government Advocate vehemently opposed
the prayer for bail of the applicant by
contending that:-

(i)- commercial quantity of Ganja
is 20 Kg, whereas in this case total 157.570
Kgs. of illegal Ganja have been recovered
(92.410 Kgs. of Ganja was recovered from
the dicky of Honda City car bearing No.
MH 04 AF 0076 and 65.160 Kgs. of Ganja
from the dicky of Swift Dzire car bearing
No. UP 70 EW 0246), which are much
more than commercial quantity, therefore,
provisions of Section 37 of the N.D.P.S.
Act are attracted in the present case.

(ii)- co-accused Sonoo Shukla and
Praveen Maurya @ Puneet Maurya have
been granted bail by the Coordinate Bench
vide orders dated 14.07.2021 and 14.09.2021
respectively
without
considering
the
mandatory provisions of Section 37 of the
N.D.P.S. Act and material on record available
in the case diary as well as without giving
any reason, therefore, benefit of parity of
such bail orders cannot be given to the
present applicant.

(iii)- the bail has been obtained by
misrepresentation of facts and law. It is
submitted that in this case, total 157.570 Kgs
''Ganja' was recovered from the dicky of the
vehicles in question, therefore, provisions of
Section 50 of N.D.P.S. Act is not attracted at
all in view of the recent judgments of the
Apex Court in the cases of Varinder Kumar
Vs. State of Himachal Pradesh, (2020) 3
SCC 321, Kallu Khan Vs. State of
Rajasthan, 2021 SCC OnLine SC 1223
and Dayalu Kashyap
Vs.
State
of
Chattisgarh, 2022 SCC OnLine SC 334.

(iv)- Mr. Maurya, learned A.G.A.
has also placed reliance upon following
judgments of the Apex Court as well as of
this Court:-

(a).
In
Chandigarh
Administration and another Vs. Jagjit
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh and another, AIR 1995 SC 705, the
Apex Court in paragraph-8 has held as
follows:

"....... if the order in favour of the
other person is found to be contrary to law
or not warranted in the facts and
circumstances of his case, it is obvious that
such illegal and unwarranted order cannot
be made the basis of issuing a writ
compelling the respondent-authority to
repeat the illegality or to pass another
unwarranted order."

"......
The
illegal/unwarranted
action must be corrected, if it can be done
according to law-indeed, wherever it is
possible, the Court should direct the
appropriate authority to correct such
wrong orders in accordance with law-but
even if it cannot be corrected, it is difficult
to see how it can be made a basis for its
repetition.

"..... Giving effect to such pleas
would be prejudicial to the interests of law
and will do incalculable mischief to 5
public interest. It will be a negation of law
and the rule of law."

(b). In Special Leave Petition
No. 4059 of 2000: Rakesh Kumar Pandey
Vs. Munni Singh @ Mata Bux Singh and
another, decided on 12.3.2001, the Hon'ble
Apex Court strongly denounced the order
of the High Court granting bail to the coaccused on the ground of parity in a
heinous offence and while cancelling the
bail granted by the High Court it observed
that:-

"The High Court on being moved,
has considered the application for bail and
without bearing in mind the relevant
materials on record as well as the gravity
of
offence
released
the
accusedrespondents on bail, since the co-accused,
who had been ascribed similar role, had
been granted bail earlier."

(c). In the case of Satyendra
Singh Vs. State of U.P., 1996 A.Cr.R.
867, the following observations have been
made by this Court :

Para 16: "The orders granting,
refusing or cancelling bail are orders of
interlocutory nature. It is true that
discretion in passing interim orders should
be exercised judicially but rule of parity is
not applicable in all the cases, where one
or more accused have been granted bail or
similar role has been assigned inasmuch as
bail is granted on the totality of facts and
circumstances of a case. Parity can not be
a sole ground and is one of the grounds for
consideration of the question of bail."

7- Having heard the learned counsel
for the parties, I find that the issue that
arises for consideration before this Court is
"as to whether the applicant is entitled to
be released on bail only on the ground of
parity of bail orders dated 14.07.2021 and
14.09.2021 of co-accused Sonoo Shukla
and Praveen Maurya @ Puneet Maurya,
which have been passed by the Coordinate
Bench without considering the mandatory
provisions of Section 37 of the N.D.P.S. Act
and without giving reasons."

8- Relevant part of the aforesaid
bail order dated 14.07.2021 of coaccused Sonoo Shukla passed by the
Coordinate Bench is being reproduced
herein below:-

"Heard learned counsel for the
applicant, learned A.G.A for the State and
perused the record.
6 All. Dheeraj Kumar Shukla Vs. State of U.P.
1047

It has been argued by learned
counsel for the applicant that applicant is
innocent and he has been falsely implicated
in the present case. It is alleged that
157.570 of Ganja was alleged to be
recovered from the vehicle Swift Desire
Car
No.
UP-70-EW-0246,
which
is
registered in the name of accusedapplicant. It is further contended that the
alleged recovery was not made from the
accused-applicant and he was implicated in
this case on the ground that he is registered
owner of the aforesaid Swift Desire Car. It
is further contended that the recovery was
made from Dheeraj Kumar Shukla, who is
the brother of present accused-applicant
from aforesaid Swift Desire Car. It is
contended that on arrest of co-accused -
Dheeraj Kumar Shukla, he stated that this
car belongs to him. His father has
purchased in the name of present accusedapplicant for use of co-accused Dheeraj. It
is further contended that Swift Desire Car
No. UP-70-EW-0246 has been released in
favour of the accused-applicant by the
Court of learned Additional District &
Sessions Judge Court No. 10, Allahabad on
15.10.2020. It is further contended that the
alleged vehicle was used for transporting
of
alleged
contraband
without
his
knowledge of his brother or without his
consent.

Learned A.G.A. has opposed the
prayer for bail, but he could not dispute
the aforesaid facts and submitted that the
alleged recovery was not made from the
accused-applicant. He has not disputed
the above facts that the alleged vehicle
was not released in favour of the accused
applicant.

Considering the entire facts and
circumstances of the case, submissions of
learned counsel for the parties, nature of
evidence and all attending facts and
circumstances
of
the
case,
without
expressing any opinion on merits of the
case, the Court is of the view that the
applicant has made out a case for bail. The
bail application is allowed."

9- Relevant part of bail order dated
14.09.2021 of co-accused Praveen Maurya @
Puneet Maurya passed by the Coordinate
Bench is being also reproduced herein below:-

"Heard learned counsel for the
applicant, learned AGA, appearing for the
State and perused the material brought on
record.

It has been contended by the
learned counsel for the applicant that 92.410
kilograms contraband article, i.e. Ganja, is
said to have been recovered from the vehicle
in which the applicant and one co-accused
were sitting along with the driver. He further
submits that there is no compliance of
mandatory provisions of Section 50 N.D.P.S.
Act, hence the recovery is bad in the eyes of
law. It has also been submitted that the
applicant
is languishing in
jail since
24.06.2020. The applicant has no other
reported criminal antecedent.

Learned A.G.A. has vehemently
opposed the prayer.

Courts have taken notice of the
overcrowding of jails during the current
pandemic situation (Ref.: Suo Motu Writ
Petition (C) No. 1/2020, Contagion of COVID
19 Virus in prisons before the Supreme Court
of India). These circumstances shall also be
factored in while considering bail applications
on behalf of accused persons.

Having heard the submissions of
learned counsel of both sides, nature of
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
accusation and the severity of punishment
in case of conviction and the nature of
supporting
evidence,
prima
facie
satisfaction of the Court in support of the
charge, reformative theory of punishment,
and larger mandate of the Article 21 of the
Constitution of India, the dictum of Apex
Court in the case of Dataram Singh v. State
of U.P. and another, reported in (2018) 2
SCC 22 and without expressing any
opinion on the merit of the case, I find it to
be a case of bail."

10- Before delving into the matter, it
is apposite to quote the Section 37 of
N.D.P.S. Act, which are as follows:-

"37. Offences to be cognizable
and non-bailable. - (1) Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974)-

a- every offence punishable under
this Act shall be cognizable;

b- 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

(i) the Public Prosecutor has
been given an opportunity to oppose the
application for such release, and

(ii) 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."

11- On several occasions, the Apex
Court has considered the issue relating to
provisions of Section 37 of the N.D.P.S.
Act and after wholesome treatment laid
down guidelines in this regard observing
inter alia that recording of finding in terms
of Section 37 of N.D.P.S. Act is a sine qua
non for granting bail under N.D.P.S. Act.
Reference of some of the relevant decisions
are as follow:-

(i). The expression 'reasonable
grounds' has not been defined in the
N.D.P.S. Act, but the Apex Court in the
case of Union of India Vs. Rattan Mallik
@ Habul, 2009 (1) SCC (Crl) 831, has
settled
the
expression
"reasonable
grounds". Relevant paragraphs no. 12, 13
and 14 are quoted herein below:

"12. It is plain from a bare
reading of the non-obstante clause in the
Section and sub-section (2) thereof that the
power to grant bail to a person accused of
having committed offence under the NDPS
Act is not only subject to the limitations
imposed under Section 439 of the Code of
Criminal Procedure, 1973, it is also subject
to the restrictions placed by sub-clause (b)
of subsection (1) of Section 37 of the NDPS
Act. Apart from giving an opportunity to
the Public Prosecutor to oppose the
application for such release, the other twin
conditions viz; (i) the satisfaction of the
Court that there are reasonable grounds
for believing that the accused is not guilty
of the alleged offence; and (ii) that he is not
likely to commit any offence while on bail,
have to be satisfied. It is manifest that the
conditions
are
cumulative
and
not
6 All. Dheeraj Kumar Shukla Vs. State of U.P.
1049
alternative. The satisfaction contemplated
regarding the accused being not guilty, has
to be based on "reasonable grounds".

13. The expression `reasonable
grounds' has not been defined in the said
Act but means something more than prima
facie grounds. It connotes substantial
probable causes for believing that the
accused is not guilty of the offence he is
charged with. The
reasonable belief
contemplated in turn points to existence of
such facts and circumstances as are
sufficient
in
themselves
to
justify
satisfaction that the accused is not guilty of
the alleged offence. [Vide Union of India
Vs. Shiv Shanker Kesari, (2007) 7 SCC
798] Thus, recording of satisfaction on
both the aspects, noted above, is sine qua
non for granting of bail under the NDPS
Act.

14. We may, however, hasten to
add that while considering an application
for bail with reference to Section 37 of the
NDPS Act, the Court is not called upon to
record a finding of 'not guilty'. At this
stage, it is neither necessary nor desirable
to weigh the evidence meticulously to
arrive at a positive finding as to whether or
not the accused has committed offence
under the NDPS Act. What is to be seen is
whether there is reasonable ground for
believing that the accused is not guilty of
the offence(s) he is charged with and
further that he is not likely to commit an
offence under the said Act while on bail.
The satisfaction of the Court about the
existence of the said twin conditions is for a
limited purpose and is confined to the
question of releasing the accused on bail."

(ii). In case of Union of India
Vs. Ram Samujh, (1999) 9 SCC 429,
Apex
Court
has
made
following
observations in paragraph 7 of the said
judgment, which are reproduced herein
below:-

"7. It is to be borne in mind that
the
aforesaid
legislative
mandate
is
required to be adhered and followed. It
should be borne in mind that in murder
case, accused commits murder of one or
two persons, while those persons who are
dealing in narcotic drugs are instruments
in causing death or in inflicting death blow
to number of innocent young victims, who
are vulnerable: it causes deleterious effects
and deadly impact on the society; they are
a hazard to the society; even if they are
released temporarily, in all probability,
they
would
continue
their
nefarious
activities of trafficking and/or dealing in
intoxicants clandestinely. Reason may be
large stake and illegal profit involved. This
Court, dealing with the contention with
regard to punishment under NDPS Act, has
succinctly observed about the adverse
effect of such activities in Durand Didien v.
Chief Secretary. Union Territory of Goa.
[1990] 1 SCC 95 as under:

"24. With deep concern, we may
point out that the organised activities of the
underworld and the clandestine smuggling
of
narcotic
drugs
and
psychotropic
substances into this country and illegal
trafficking in such drugs and substances
have led to drug addiction among a
sizeable section of the public, particularly
the adolescents and students of both sexes
and the menace has assumed serious and
alarming proportion in the recent years.
Therefore, in order to effectively control
and
eradicate
this
proliferating
and
booming devastating menace, causing
deleterious effects and deadly impact on
the society as a whole, the Parliament in
the wisdom has made effective provisions
by introducing this Act 81 of 1985
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
specifying
mandatory
minimum
imprisonment and fine."

(iii). In Union of India Vs. Shiv
Shankar Kesari, (2007) 7 SCC 798, Apex
Court
elaborated
and
explained
the
conditions for granting of bail as provided
under Section 37 of the Act. Relevant
paragraph Nos. 6 and 7 are extracted here
in below :-

"6.
As
the
provision
itself
provides no person shall be granted bail
unless the two conditions are satisfied.
They are; the satisfaction of the Court that
there are reasonable grounds for believing
that the accused is not guilty and that he is
not likely to commit any offence while on
bail. Both the conditions have to be
satisfied. If either of these two conditions is
not satisfied, the bar operates and the
accused cannot be released on bail.

7. The expression used in Section
37 (1)(b) (ii) is "reasonable grounds". The
expression means something more than
prima
facie
grounds.
It
connotes
substantial probable causes for believing
that the accused is not guilty of the offence
charged
and
this
reasonable
belief
contemplated in turn points to existence of
such facts and circumstances as are
sufficient in themselves to justify recording
of satisfaction that the accused is not guilty
of the offence charged."

(iv). In State of Kerala Etc. Vs.
Rajesh Etc. AIR 2020 Supreme Court
721, Apex Court again considered the
scope of Section 37 of N.D.P.S. Act and
relying upon earlier decision in Ram
Samujh (Supra) held as under:

"20. The scheme of Section 37
reveals that the exercise of power to grant
bail is not only subject to the limitations
contained under Section 439 of the CrPC,
but is also subject to the limitation placed
by Section 37 which commences with nonobstante clause. The operative part of the
said section is in the negative form
prescribing the enlargement of bail to any
person accused of commission of an
offence
under
the
Act,
unless
twin
conditions are satisfied. The first condition
is that the prosecution must be given an
opportunity to oppose the application; and
the second, is that the Court must be
satisfied that there are reasonable grounds
for believing that he is not guilty of such
offence. If either of these two conditions is
not satisfied, the ban for granting bail
operates.

21. 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. In the case on hand,
the High Court seems to have completely
overlooked the underlying object of Section
37 that in addition to the limitations
provided under the CrPC, or any other law
for the time being in force, regulating the
grant of bail, its liberal approach in the
matter of bail under the NDPS Act is
indeed uncalled for."

(v). The Apex Court in Union of
India vs Prateek Shukla (Crl.A. No.
284/2021), AIR 2021 SC 1509 has held
that merely recording the submissions of
the parties does not amount to an indication
of a judicial or, for that matter, a judicious
6 All. Dheeraj Kumar Shukla Vs. State of U.P.
1051
application of mind. The provisions of
Section 37 of the N.D.P.S. Act provide the
legal norms which have to be applied in
determining whether a case for grant of bail
has been made out. The relevant paragraph
nos. 11 of the said judgment are reproduced
herein under :

"11. Ex facie, there has been no
application of mind by the High Court to
the rival submissions and, particularly, to
the seriousness of the allegations involving
an offence punishable under the provisions
of the NDPS Act. Merely recording the
submissions of the parties does not amount
to an indication of a judicial or, for that
matter, a judicious application of mind by
the Single Judge of the High Court to the
basic question as to whether bail should be
granted. The provisions of Section 37 of the
NDPS Act provide the legal norms which
have to be applied in determining whether
a case for grant of bail has been made out.
There has been a serious infraction by the
High Court of its duty to apply the
law........"

NOTE:- Here it is also relevant
to mention that in the case of Prateek
Shukla (supra), Review Petition (Crl.)
No.323 of 2021 was filed but the same was
rejected by the Apex Court vide order dated
17.08.2021.

(vi). The Apex Court in the
matter of The State (NCT of Delhi)
Narcotics Control Bureau Vs. Lokesh
Chadha, (2021) 5 SCC 724 has held that :

"......Section 37 of the NDPS Act
stipulates that no person accused of an
offence punishable for the offences under
section 19 or section 24 or section 27A and
also for offences involving commercial
quantity shall be released on bail, where
the
Public
Prosecutor
oppose
the
application, unless 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."

(vii). Narcotics Control Bureau
Vs. Laxman Prasad Soni, Etc. (Criminal
Appeal Nos. 438-440 of 2021 decided by
the Apex Court on 19.04.2021).

In the said case, there was recovery
of 229 Kgs. of Ganja from the possession of
accused persons. Out of which 25 Kgs. of
Ganja was recovered from one vehicle
occupied by the accused. There was another
vehicle namely truck in which rest of the
contraband material was found. The accused
persons, who were arrested along with 25
Kgs. Ganja have been granted bail by the coordinate Bench of this Court vide order dated
23.09.2019
in
Criminal
Misc.
Bail
Application Nos. 38036 of 2019, 38066 of
2019 and 38048 of 2019 without considering
provisions of Section 37 of the N.D.P.S. Act.

The
aforesaid
order
dated
23.09.2019 has been set-aside by the Apex
Court on account of the reason that the
applications for bail were allowed by the
High Court without considering the import
and effect of Section 37 of the N.D.P.S. Act.

(viii). The Apex Court in Union of
India
v.
Vimla
Singh,
decided
on
19.08.2021 in Criminal Appeal No. 862 of
2021, has set-aside the bail order passed by
High Court to four accused on the ground
that High Court has not taken into account
the effect and rigour of Section 37 of the
N.D.P.S. Act.

(ix). The Apex Court in the case
of Union of India through Narcotics
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Control Bureau, Lucknow vs. Md.
Nawaz Khan, (2021) 10 SCC 100 has held
that:-

"23.....the test which the High
Court and this Court are required to apply
while granting bail is also for offences
involving commercial quantity shall be
released
on
bail,
where
there
are
reasonable grounds for believing that he is
not committed an offence and whether he is
likely to commit any offence while on bail.
Given
the
seriousness
of
offences
punishable under the NDPS Act and in
order to curb the menance of drugtrafficking
in
the
country,
stringent
parameters for grant of bail under the
NDPS Act have been prescribed."

12- The Apex Court in several cases
deprecated the practice of passing bail
orders without giving reasons. In order to
deal the issue involved in the case in hand,
it would be useful to refer following
judgments of the Apex Court.

(i). The Apex Court in Kalyan
Chandra Sarkar v. Rajesh Ranjan @
Pappu Yadav and another, (2004) 7 SCC
528 has held that:-

"....although it is established that
a court considering a bail application
cannot undertake a detailed examination of
evidence and an elaborate discussion on
the merits of the case, the court is required
to indicate the prima facie reasons
justifying the grant of bail."

(ii). The Apex Court in the case
of Sonu vs Sonu Yadav and another,
2021 SCC OnLine SC 286 has observed
that
an
order
without
reasons
is
fundamentally contrary to the norms which
guide
the
judicial
process.
The
administration of criminal justice by the
High Court cannot be reduced to a mantra
containing
a
recitation
of
general
observations. That there has been a
judicious application of mind by the judge
who is deciding an application under
Section 439 of the CrPC must emerge from
the quality of the reasoning which is
embodied in the order granting bail.

The relevant paragraph nos. 11
and 12 of the said judgments are
reproduced herein under:-

"11. In the earlier part of this
judgment, we have extracted the lone
sentence in the order of the High Court
which
is
intended
to
display
some
semblance of reasoning for justifying the
grant of bail. The sentence which we have
extracted earlier contains an omnibus
amalgam of (i) "the entire facts and
circumstances
of
the
case";
(ii)
"submissions of learned Counsel for the
parties"; (iii) "the nature of offence"; (iv)
"evidence";
and
(v)
"complicity
of
accused".
This
is
followed
by
an
observation that the "applicant has made
out a case for bail", "without expressing
any opinion on the merits of the case". This
does not constitute the kind of reasoning
which is expected of a judicial order. The
High Court cannot be oblivious, in a case
such as the present, of the seriousness of
the alleged offence, where a woman has
met an unnatural end within a year of
marriage. The seriousness of the alleged
offence has to be evaluated in the backdrop
of the allegation that she was being
harassed for dowry; and that a telephone
call was received from the accused in
close-proximity to the time of death,
making a demand. There are specific
allegations of harassment against the
accused on the ground of dowry. An order
6 All. Dheeraj Kumar Shukla Vs. State of U.P.
1053
without reasons is fundamentally contrary
to the norms which guide the judicial
process. The administration of criminal
justice by the High Court cannot be
reduced to a mantra containing a recitation
of general observations. That there has
been a judicious application of mind by the
judge who is deciding an application under
Section 439 of the CrPC must emerge from
the quality of the reasoning which is
embodied in the order granting bail. While
the reasons may be brief, it is the quality of
the reasons which matters the most. That is
because the reasons in a judicial order
unravel the thought process of a trained
judicial mind. We are constrained to make
these observations because the reasons
indicated in the judgment of the High Court
in this case are becoming increasingly
familiar in matters which come to this
Court. It is time that such a practice is
discontinued and that the reasons in
support of orders granting bail comport
with a judicial process which brings
credibility to the administration of criminal
justice.

12. For the above reasons, we are
of the view that the order of the High Court
granting bail without due application of
mind
to
the
relevant
facts
and
circumstances as well to the provisions of
the law requires the interference of this
Court."

(iii). The Apex Court in the matter of
Ms Y versus State of Rajasthan and
another, 2022 SCC OnLine SC 458
considering the earlier decisions as well as
judgment of the Apex Court in the matter
of Mahipal v. Rajesh Kumar @ Polia
and another, (2020) 2 SCC 118 has again
insisted for giving reasoned order while
granting or refusing bail. The relevant
paragraph nos. 22 and 23 of the said
judgments are reproduced herein under:-

"22. The impugned order passed
by the High Court is cryptic, and does not
suggest any application of mind. There is a
recent trend of passing such orders
granting or refusing to grant bail, where
the Courts make a general observation that
"the facts and the circumstances" have
been considered. No specific reasons are
indicated which precipitated the passing of
the order by the Court.

23. Such a situation continues
despite various judgments of this Court
wherein this Court has disapproved of such
a practice. In the case of Mahipal (supra)
this Court observed as follows:

"25. Merely recording "having
perused the record" and "on the facts and
circumstances of the case" does not
subserve the purpose of a reasoned
judicial order. It is a fundamental premise
of open justice, to which our judicial
system is committed, that factors which
have weighed in the mind of the Judge in
the rejection or the grant of bail are
recorded in the order passed. Open justice
is premised on the notion that justice
should not only be done, but should
manifestly and undoubtedly be seen to be
done. The duty of Judges to give reasoned
decisions lies at the heart of this
commitment. Questions of the grant of bail
concern
both
liberty
of
individuals
undergoing criminal prosecution as well as
the interests of the criminal justice system
in ensuring that those who commit crimes
are not afforded the opportunity to obstruct
justice. Judges are duty-bound to explain
the basis on which they have arrived at a
conclusion.
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

(emphasis supplied)"

(iv). In quite recent, the Apex
Court in the case of Manoj Kumar
Khokhar versus State of Rajasthan and
another, (2022) 3 SCC 501 considering
several previous judgments on the issue has
held that thought detail evaluation of facts
on merit is not permissible, but the Court
granting bail cannot obviate its duty to
apply its judicial mind and to record
reasons, brief as they may be, for the
purpose of deciding whether or not to grant
bail.

13- In view of the above discussion, it
is crystal clear that before granting bail for
the offence under N.D.P.S. Act, twin
conditions as provided under Section
37(1)(b)(i) and (ii) have to be satisfied,
which is in addition to Section 439 of
Cr.P.C.