3. Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598

This judgment stresses that:

• bail is discretionary but must be exercised in a judicious and reasoned manner;
• the nature of the offence is a basic consideration; and
• the more heinous the offence, the greater the likelihood of bail being refused, subject to facts.

In NDPS matters, particularly involving alleged commercial quantities, courts are naturally cautious. However, Shiranjana Budha illustrates that:

• where the prosecution’s own status report reveals evidentiary deficiencies,
• the mere label of “commercial quantity” and seriousness of the offence cannot override the need for a reasoned and fact-sensitive assessment.

4. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528

This decision clarifies that while bail courts should avoid a detailed evaluation of evidence, they must:

• record prima facie reasons for granting or refusing bail, and
• cannot issue mechanical or cryptic orders.

In the present case, the High Court:

• carefully analysed the status report,
• explicitly addressed the sampling process, lack of FSL report, quantity discrepancy, and antecedents, and
• recorded clear reasons why Section 37 NDPS could not be invoked at this stage.

5. Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

This case lays down that High Court orders granting bail can be set aside if passed:

• without proper application of mind, or
• without considering crucial factors such as:
  • prima facie guilt,
  • nature and gravity of accusation,
  • severity of punishment,
  • risk of absconding or tampering, and
  • wider impact on the course of justice.

Here, the High Court explicitly notes its duty—under Pinki and these precedents—to avoid mechanical grant or refusal of bail. Its extended reasoning on sampling, FSL report, and Section 37 is in direct conformity with this requirement.

6. Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497

This three-judge bench decision underscores that:

• personal liberty is invaluable, but
• accusations supported by adequate material must be weighed seriously, and
• a prima facie conclusion must be reasoned and based on vital facts on record.

Its relevance here is twofold:

• It reinforces that the High Court must engage with the record (status report, seizure process, sampling, etc.).
• It indirectly suggests that where adequate material is lacking or defective, the court should be cautious about mechanically treating the case as involving commercial quantity and applying Section 37.

7. Cumulative effect of these precedents via Pinki

By quoting extensively from Pinki v. State of U.P., the High Court:

• reaffirms that bail is fact-sensitive and not formulaic,
• insists on reasoned orders, and
• uses the Supreme Court’s framework as a lens to scrutinise:
  • whether the State has shown prima facie commercial quantity,
  • whether Section 37 NDPS is engaged, and
  • whether continued custody is necessary.

Thus, the High Court’s approach is firmly anchored in contemporary Supreme Court jurisprudence on bail.

C. Core Legal Reasoning in Shiranjana Budha

1. On the Applicability of Section 37 NDPS Act

Section 37 NDPS Act makes offences involving commercial quantity cognizable and non-bailable, and places additional conditions on granting bail. In such cases, the court must be satisfied that:

1. there are reasonable grounds for believing that the accused is not guilty of such offence; and
2. the accused is not likely to commit any offence while on bail.

These are often referred to as the “twin conditions” or the “rigours of Section 37”.

In the present case, the Court’s key reasoning is that before Section 37 can even be invoked:

• the prosecution must at least prima facie establish that the case indeed involves a commercial quantity of a narcotic drug or psychotropic substance.

The Court held that it was “difficult to conclude that the petitioner was found in possession of a commercial quantity of opium” because:

• All nine pouches (3 near petitioner, 6 near co-accused) were mixed together and weighed as a single bulk of 8.184 kg.
• The samples for SFSL (as taken under Section 52A) were taken from this mixed bulk, not from the individual pouches or individual bags.
• The status report does not state that the sample was representative and homogeneous of each pouch or each accused’s bag.
• There is no assertion, let alone proof, that the particular quantity allegedly linked to the petitioner’s bag (2.544 kg) was independently confirmed as opium by SFSL.

Thus, the Court concludes:

“Therefore, in these circumstances, it is difficult to conclude that the petitioner was found in possession of a commercial quantity of opium. Hence, the submission that the rigours of Section 37 of NDPS apply to the present case is not acceptable.”

This is a crucial articulation: the mere assertion of a commercial quantity in the FIR or status report is inadequate if:

• the investigative procedure prevents clear attribution of contraband to each accused, and
• the sampling is procedurally defective (mixing all pouches, no representative sampling proved).

2. On Sampling, Mixing of Pouches and Section 52A NDPS Act

The Court notes:

• The Investigating Officer (IO) “mixed the contents of the backpack and had weighed them together”.
• Samples were taken from this mixed content.
• The status report does not state that the sample was “representative and homogeneous”.
• Packets were not sent individually to determine if each contained opium.

From this, the Court draws a critical inference:

“Thus, it is highly doubtful that the samples were taken from the contents of the backpack recovered near the feet of the petitioner.”

This reasoning reflects a growing judicial insistence (seen in many NDPS decisions across High Courts and the Supreme Court) that:

• Sampling must follow Section 52A and the relevant Standing Orders;
• Samples must be homogeneous and representative of the contraband attributed to each accused; and
• Mixing separately seized contraband can:
  • destroy the ability to attribute a particular quantity to an individual accused; and
  • create artificial “commercial quantity” totals where, for instance, some packets may not even contain contraband.

In other words, defective sampling and mixing directly impact:

• the fairness of the prosecution, and
• the threshold question whether the accused can even be said to be involved with a “commercial quantity” so as to attract Section 37 NDPS.

3. On Absence of FSL/SFSL Report in the Status Report

The Court notes that the status report:

• does not mention that the sample was sent to the State Forensic Science Laboratory, and
• does not mention any analysis report confirming that the sample was opium.

The Court therefore observes:

“Therefore, the status report is silent regarding the fact that the petitioner was found in possession of the opium.”

This is important not only at the trial stage but even at the bail stage:

• The prosecution is expected to give at least a prima facie basis for alleging that the substance is a narcotic drug.
• Without an FSL report (or at least a statement that such report confirms the narcotic nature of the seized material), courts are being asked to rely on a mere police assertion.
• Consistent with Prahlad Singh Bhati, there would then be no “reasonable grounds for believing” that the accused committed a specific NDPS offence involving opium.

4. On Conscious Possession and Location of the Bags

The petitioner had argued that:

• she was not in “conscious possession” of the contraband; and
• the bags were simply “found near her feet” in a public bus.

The Court does not finally adjudicate this question of conscious possession (as that pertains to the trial), but its discussion of:

• mixed sampling,
• lack of clear attribution of specific pouches to her, and
• the fact that the contraband was in a bus with others present,

implicitly supports the view that, at the bail stage, the prosecution’s case on exclusive and conscious possession is not yet strong.

5. On Antecedents, Stage of Trial and Justification for Custody

The Court gives considerable weight to:

• the petitioner’s clean antecedents – undisputed by the State;
• the fact that the charge sheet is already filed and the case is at the pre-charge stage;
• the number of witnesses (22), suggesting the trial will take time; and
• the absence of any specific reasons in the status report justifying further detention (e.g., risk of absconding, tampering, etc.).

These considerations directly mirror the factors highlighted in:

• Gudikanti Narasimhulu (antecedents, risk of further crime);
• Prahlad Singh Bhati (presence at trial, tampering, public interest); and
• Brijmani Devi (adequate material on record, not mere allegations).

Accordingly, once Section 37 NDPS is held inapplicable, the Court applies the ordinary bail standards and concludes that:

“…no fruitful purpose would be served by detaining the petitioner in custody.”

D. Potential Impact of the Judgment

1. On NDPS Investigations and Sampling Practices

This decision sends a clear message to investigating agencies in Himachal Pradesh (and elsewhere, by persuasive value):

• Mixing pouches or parcels from different accused is legally risky.
  If contraband recovered from multiple persons is mixed before sampling, the prosecution may:
  • lose the ability to attribute a specific quantity to an individual accused; and
  • face serious challenges in treating the case as one involving commercial quantity.
• Representative and homogeneous sampling must be demonstrable.
  Status reports and case records should:
  • clearly describe the sampling process,
  • confirm that the sample was representative of each seized packet, and
  • record compliance with Section 52A NDPS Act and applicable Standing Orders.
• FSL reports should be promptly obtained and disclosed.
  A failure to indicate, even at the bail stage, that the FSL confirms the nature of the substance as a narcotic drug will:
  • undermine the prosecution’s case prima facie; and
  • strengthen defence arguments for bail.

2. On the Application of Section 37 NDPS in Bail Proceedings

While many courts have emphasised the strict nature of Section 37 NDPS, this decision highlights an equally important, but sometimes under-emphasised, point:

Section 37’s rigours are not automatically triggered merely because the police assert “commercial quantity” in the FIR. Compliance with basic evidentiary and procedural requirements (especially proper sampling and forensic confirmation) is a precondition for treating a case as involving commercial quantity at the bail stage.

Thus, defence counsel in NDPS cases can:

• scrutinise the seizure memo, sampling memo, and FSL report closely;
• argue that lapses in these processes mean that the prosecution cannot, at that stage, claim the benefit of Section 37’s stricter bail conditions; and
• contend that the ordinary bail standards should then apply.

3. On Bail Jurisprudence and Article 21

This ruling reinforces the Supreme Court’s direction in Pinki and earlier decisions that:

• bail decisions must be reasoned and evidence-sensitive;
• mere seriousness of allegation cannot override procedural fairness and the presumption of innocence; and
• long pre-trial detention without strong justification violates the ethos of Article 21 (right to life and personal liberty).

Even in a strict statute like the NDPS Act, liberty is not to be sacrificed mechanically. The prosecution must still show, at a minimum, a coherent prima facie case based on:

• proper seizure and sampling,
• forensic confirmation, and
• a plausible link between the accused and the contraband.

4. On the “Reportability” Label

The order records that it is “not approved for reporting”. Under internal High Court practice, this typically means:

• the judgment is not selected as a binding or leading precedent for official law reports; but
• it still has persuasive value, especially on similar fact situations.

For practitioners, particularly in Himachal Pradesh, this decision may be cited (subject to court’s discretion) to:

• challenge the applicability of Section 37 where sampling or FSL proof is deficient;
• insist that NDPS bail cannot be opposed merely on assertion of commercial quantity without adequate material; and
• highlight the need to balance strict NDPS provisions with the constitutional mandate of fair procedure.

IV. Simplifying Key Legal Concepts

1. NDPS Act Offences Invoked

• Section 18 NDPS Act – Opium and opium derivatives
  Covers offences relating to cultivation of opium poppy, production, manufacture, possession, sale, purchase, transport, and similar dealings in opium. Punishment varies depending on:
  • small quantity,
  • quantity lesser than commercial but greater than small (intermediate), or
  • commercial quantity.
• Section 29 NDPS Act – Abetment and criminal conspiracy
  Makes a person liable if he/she:
  • abets (encourages, aids, instigates) an NDPS offence; or
  • is party to a criminal conspiracy to commit an NDPS offence.

2. Commercial Quantity and Its Legal Consequence

Under NDPS, quantities are categorised as:

• Small quantity – below a notified threshold;
• Intermediate quantity – between small and commercial; and
• Commercial quantity – above a notified threshold.

For opium, “commercial quantity” is specifically notified by the Central Government. If the quantity is commercial:

• the offence becomes more serious, with higher minimum and maximum punishment;
• Section 37 NDPS Act applies, making bail much harder to obtain.

3. Section 37 NDPS Act – “Rigours” Explained

Section 37 provides:

• For offences involving commercial quantity, the court shall not grant bail unless:
  1. it is satisfied that there are reasonable grounds for believing that the accused is not guilty; and
  2. it is satisfied that the accused is not likely to commit any offence while on bail.

This is why courts often refer to the “rigours” of Section 37 – it places a heavier burden on the accused seeking bail and restricts judicial discretion.

4. Section 52A NDPS Act – Disposal and Sampling

Section 52A governs how seized narcotic drugs are to be handled and disposed of:

• It provides for the drawing of representative samples in the presence of a Magistrate.
• Proper sampling and sealing ensures that:
  • the integrity of the evidence is preserved, and
  • the forensic analysis accurately reflects the substance seized.

If samples are improperly drawn—for example, by mixing contraband from different accused or different packets—it may:

• undermine the prosecution case at trial; and
• weaken the basis for invoking Section 37 NDPS at the bail stage, as seen in this case.

5. Conscious Possession

“Conscious possession” in criminal law involves:

• Physical control over the substance (actual or constructive), and
• Knowledge that such substance is in one’s possession.

In NDPS cases, courts often examine:

• where exactly the contraband was found (e.g., in a bag held, under a seat, near the accused);
• whether the accused had exclusive control over that space or bag; and
• whether there were circumstances indicating knowledge (e.g., nervous behaviour, admissions, prior dealings).

In a public bus, a bag “near someone’s feet” may or may not amount to conscious possession—it is highly fact-dependent, which is why this case leaves that question actually for trial.

6. Status Report and Charge Sheet

• Status report
  A document filed by the prosecution (usually the police) in response to a bail application, outlining:
  • facts of the case,
  • progress of investigation,
  • evidence collected, and
  • reasons for opposing bail.
  In this case, the status report’s silence on FSL and representative sampling was decisive.
• Charge sheet (challan)
  The final police report under Section 173 CrPC, laying out:
  • the offences alleged,
  • evidence and witnesses, and
  • prayer to proceed against the accused.
  Once filed, investigation is deemed substantially complete, reducing the risk of the accused interfering with ongoing evidence collection.

V. Conclusion: Key Takeaways and Broader Significance

The Himachal Pradesh High Court’s order in Shiranjana Budha v. State of Himachal Pradesh, though marked not reportable, is an instructive instance of how courts should handle NDPS bail cases where investigative lapses exist.

1. Key Legal Takeaways

• Section 37 NDPS Act is not automatically triggered.
  The prosecution must first demonstrate, at least prima facie, that:
  • the seized substance is indeed a narcotic drug (through FSL or similar material), and
  • the particular accused is linked to a commercial quantity of that substance.
  Defects like mixing pouches, non-representative sampling, and lack of FSL disclosure can prevent Section 37 from being invoked.
• Sampling and FSL evidence are critical even at the bail stage.
  Courts will not accept bare police assertions without:
  • a clear sampling narrative, and
  • some indication of forensic confirmation.
• Clean antecedents and lack of justification for prolonged custody favour bail.
  Where the accused has no criminal record, the charge sheet is filed, and the trial is likely to be protracted, continued detention must be specifically justified by the State (e.g., risk of absconding or tampering). Silence on these points weakens the opposition to bail.
• General bail principles remain fully applicable to NDPS cases where Section 37 is inapt.
  The Court faithfully applies the Supreme Court’s guidance in Pinki and earlier precedents, emphasising:
  • reasoned orders,
  • evaluation of evidence quality, and
  • protection of Article 21 rights.

2. Broader Significance

This decision:

• serves as a cautionary note to investigators to strictly comply with NDPS sampling protocols and to maintain clarity on who possessed what quantity; and
• reinforces that NDPS is a strict statute but not a licence for casual investigation. Procedural lapses can, and should, impact both bail and trial outcomes.

In the evolving landscape of NDPS jurisprudence, Shiranjana Budha underscores an important equilibrium: the seriousness of narcotics offences must be balanced by equally serious adherence to fair procedure and evidentiary discipline. Where that balance is disturbed by investigative shortcuts—such as indiscriminate mixing of contraband and poor documentation—courts are justified in declining to apply the harsh restrictions of Section 37 and in restoring the primacy of personal liberty at the bail stage.