Strict Application of NDPS Section 37 and the Limited Role of Arrest & Delay Challenges in Bail:
Commentary on Man Bahadur Singh v. State of Himachal Pradesh, 2025 HHC 34145

1. Introduction

This commentary examines the decision of the Himachal Pradesh High Court in Man Bahadur Singh v. State of Himachal Pradesh, Cr. MP (M) No. 1431 of 2025, decided on 9 October 2025 by Hon’ble Mr Justice Rakesh Kainthla. The judgment, approved for reporting, addresses the grant of regular bail in an NDPS case involving a commercial quantity of charas.

The decision is significant for three principal reasons:

• It reaffirms and applies the stringent “twin conditions” test under Section 37 of the NDPS Act to deny bail where commercial quantity is involved, even when the accused invokes the constitutional right to a speedy trial.
• It clarifies that an accused caught red-handed with contraband, whose arrest memo clearly mentions the offence, cannot successfully claim non-communication of the grounds of arrest as a basis for bail, treating such objections as merely “technical” absent prejudice.
• It distinguishes between genuine delay and unavoidable logistical interruptions (such as road blockages due to heavy rains), holding that the latter do not amount to a violation of the right to a speedy trial warranting bail in NDPS commercial quantity cases.

The judgment closely follows recent and classic Supreme Court jurisprudence on bail (including Pinki v. State of U.P., (2025) 7 SCC 314, and a long line of NDPS decisions on Section 37), and provides a clear template for how subordinate courts within the State may approach similar bail petitions.

2. Factual Background and Procedural History

2.1 FIR and Alleged Recovery

The petitioner, Man Bahadur Singh, was arrested in connection with FIR No. 248 of 2023, dated 18 August 2023, registered at Police Station Sadar Kullu, District Kullu, Himachal Pradesh, for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (“NDPS Act”).

According to the prosecution’s status report:

• On 18.08.2023, a police party on patrol reached Sangna Pul at about 5:14 p.m.
• The petitioner was seen sitting on a hill-side. On noticing the police, he allegedly pushed a yellow carry bag into a nearby drain.
• He was apprehended; an independent witness, Narinder Singh, was associated with the search.
• The carry bag was checked and allegedly found to contain 2.007 kg of charas.
• The contraband was seized, samples were sent to SFSL, and the report confirmed it as charas (cannabis extract).

The quantity of 2.007 kg is well above the notified threshold for “commercial quantity” of charas, which directly triggers the stringent bail regime under Section 37 of the NDPS Act.

2.2 Course of Trial

The procedural milestones are summarised as follows:

• Charge-sheet (police report) filed before the Special Judge, Kullu on 28.09.2023.
• Charges framed on 27.04.2024.
• The prosecution cited 15 witnesses.
• By 29.07.2025, 7 or 8 witnesses (the judgment uses both figures; the substance is that roughly half) had been examined.
• Some hearing dates were affected because the Kullu–Mandi national highway was blocked due to heavy rains.

By the time of the bail hearing, the petitioner had been in custody for approximately 1 year and 10 months.

2.3 Petitioner’s Case

The petitioner’s counsel advanced essentially three lines of argument:

• False implication / innocence: The petitioner claimed he was falsely implicated in a fabricated FIR.
• Delay and right to speedy trial: Nearly two years of incarceration with the trial still incomplete was said to amount to a violation of the petitioner’s constitutional right to a speedy trial, justifying his release on bail.
• Illegality of arrest: It was argued that the petitioner had not been properly informed of the grounds of his arrest, rendering his arrest illegal and supporting his release.

2.4 State’s Response

The State, through the Additional Advocate General, opposed bail on the following grounds:

• The petitioner was found in possession of a commercial quantity of charas, making Section 37 of the NDPS Act applicable.
• Under Section 37, the court could not grant bail unless the petitioner satisfied the twin conditions – that there are reasonable grounds to believe he is not guilty and that he is not likely to commit any offence while on bail – which he had failed to do.
• Only about six prosecution witnesses remained unexamined and the trial was likely to conclude soon, indicating no undue delay attributable to the prosecution.

3. Issues Before the Court

Though not formally framed as “issues”, the judgment addresses the following substantive questions:

1. Grounds of arrest: Does alleged non-communication of the grounds of arrest invalidate the arrest or materially support a bail claim when the accused is caught red-handed with contraband and the arrest memo mentions the offence?
2. Section 37 NDPS threshold: In an NDPS case involving commercial quantity, what is the standard for granting bail under Section 37, and had the petitioner met that standard?
3. Delay and speedy trial: Can custody of around 1 year and 10 months, with only part of the prosecution evidence recorded and some logistical delays, constitute a violation of the right to a speedy trial sufficient to override Section 37 and justify bail?

4. Summary of the Judgment

The High Court dismissed the bail petition.

Key holdings may be summarised as follows:

• The petitioner was allegedly apprehended red-handed with 2.007 kg of charas – a commercial quantity. On these facts, the rigours of Section 37 NDPS Act applied.
• Since the record showed that the arrest memo mentioned the offence, and the circumstances were such that the petitioner necessarily knew why he was being arrested, his plea of non-communication of the grounds of arrest was held to be unacceptable and merely technical, particularly in the absence of any shown prejudice.
• Applying Supreme Court precedents, the Court emphasised that under Section 37:
  • Bail in commercial quantity NDPS cases is conditional on the court being satisfied that there are reasonable grounds to believe the accused is not guilty and is not likely to commit any offence while on bail.
  • These conditions are mandatory, cumulative and in addition to the usual CrPC considerations.
  On the available material, the Court found that these twin conditions were not met.
• On the alleged delay, the Court found:
  • Approximately eight witnesses had been examined within about a year and three months after framing of charge.
  • Some adjournments resulted from the blockade of the Kullu–Mandi national highway due to heavy rains, which was a circumstance beyond the control of the prosecution.
  • This pattern did not show any culpable delay or violation of the right to a speedy trial such as to justify bail, especially under the NDPS Act’s special regime.
• Consequently, the petition for regular bail under Section 20 NDPS Act, read with Section 37, was rejected, with an express caveat that the observations were confined to the bail stage and would not affect the merits of the trial.

5. Detailed Analysis

5.1 General Bail Parameters: The Framework from Pinki v. State of U.P.

At the outset, the High Court restated general principles on bail by extensively quoting Pinki v. State of U.P., (2025) 7 SCC 314, which in turn synthesises earlier landmark decisions. The judgment refers in particular to:

• Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240
• Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280
• Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598
• Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528
• Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496
• Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497

Collectively, these cases establish broad, cross-cutting criteria for bail:

• Nature and gravity of accusation.
• Nature of evidence and severity of punishment upon conviction.
• Character, antecedents, and likelihood of repetition of the offence.
• Risk of absconding or tampering with evidence/witnesses.
• Larger public interest and societal impact.

Justice Kainthla explicitly notes that the present bail petition must be decided according to these parameters as laid down by the Supreme Court. However, these general principles are not applied in isolation: they are subsequently filtered through the more stringent NDPS-specific constraints under Section 37.

5.2 Grounds of Arrest: “Red-Handed” Catch and Technical Non-Communication

5.2.1 Reliance on Madhu Limaye, In Re

The petitioner argued that he was not informed about the grounds of his arrest, rendering the arrest illegal. The Court rejected this argument, relying on the three-judge bench decision in Madhu Limaye, In Re, (1969) 1 SCC 292. The judgment quotes Lord Simonds’ illustrative observation:

“There is no need to explain the reasons for arrest if the arrested man is caught red-handed and the crime is patent to high Heaven.”

The logic is that when an accused is apprehended in the very act of committing an offence, or in circumstances where the offence is manifest (e.g., recovery of contraband from his immediate control), the accused necessarily knows why he is being arrested. In such situations, a detailed, separate explanation of “grounds” is not required at the time of arrest.

Here, the petitioner was allegedly caught in physical proximity to a carry bag containing 2.007 kg of charas, seen pushing it into a drain when the police approached. In the Court’s view, the offence was “patent to high heaven”, fitting squarely within the Madhu Limaye illustration.

5.2.2 Balbir Kaur v. State Of Punjab: Technicality and Conscious Knowledge

The Court further reaffirmed the view in Balbir Kaur v. State Of Punjab, (2009) 15 SCC 795, where it was held that:

• When an accused is in conscious possession of contraband and clearly aware that the search/arrest is for possession of such contraband, any plea of non-disclosure of grounds of arrest is technical in nature.
• Absence of explicit verbal communication of grounds does not, by itself, vitiate the arrest or trial if the accused knew why she was being searched and arrested and no prejudice is demonstrated.

In Balbir Kaur, the accused sought the benefit of NDPS search safeguards, acknowledging she was being searched for contraband. The Supreme Court termed her complaint of non-communication of reasons as technical and non-prejudicial.

By adopting this reasoning, the High Court in Man Bahadur Singh effectively:

• Treats knowledge and context as central to assessing any alleged violation of the duty to communicate grounds of arrest.
• Signals that unless substantial prejudice is shown, minor or technical lapses will not automatically translate into bail, particularly in serious NDPS matters.

5.2.3 Narayanaswamy Ravishankar and the Role of the Arrest Memo

The Court then refers to Narayanaswamy Ravishankar v. Assistant Director, DRI, (2002) 8 SCC 7, where the Supreme Court held that:

“the arrest memo clearly indicates the offence stated to have been committed by the appellant under the NDPS Act... a copy of the arrest memo ... was received by the appellant.”

Thus, if the arrest memo expressly mentions the penal provision or statutory offence alleged, this is treated as adequate communication of the grounds of arrest.

In the present case, the arrest memo (filed by the petitioner himself) referred to the NDPS offence. Relying on Narayanaswamy Ravishankar, the Court concluded that the petitioner’s plea of non-communication is “not acceptable”.

5.2.4 Pending SLP in Mihir Rajesh Shah v. State of Maharashtra

The Court notes that the broader legal question about communication of grounds of arrest is pending before the Supreme Court in Mihir Rajesh Shah v. State of Maharashtra, SLP (Crl.) No. 17132 of 2024. Justice Kainthla nonetheless applies extant precedent:

• He explicitly states that “nothing more is required to be said” at this stage on that aspect, effectively declining to anticipate any possible future change in the law.
• This underscores the principle that High Courts must follow existing Supreme Court authority until it is overruled or modified, not based on potential future developments.

Doctrinally, this is a reaffirmation of judicial discipline: subordinate courts cannot “pre-empt” the Supreme Court by speculating about how a pending SLP may resolve an issue.

5.3 Section 37 NDPS Act: The Rigorous Bail Threshold

5.3.1 Statutory Position

Section 37 of the NDPS Act, reproduced in the judgment, provides that:

• NDPS offences are cognisable and non-bailable.
• For offences under Sections 19, 24, 27A and for all offences involving commercial quantity, no person shall be released on bail unless:
  1. The Public Prosecutor is given an opportunity to oppose the application, and
  2. The court is satisfied that there are reasonable grounds for believing that the accused is not guilty and not likely to commit any offence while on bail.
• These limitations are in addition to those in the CrPC or any other law on bail.

The High Court stresses that the petitioner was allegedly in possession of a commercial quantity (2.007 kg of charas), squarely attracting Section 37(1)(b).

5.3.2 Supreme Court Precedents Applying Section 37

The Court relies heavily on a line of Supreme Court decisions that emphasise the strictness of Section 37:

1. Union of India v. Niyazuddin, (2018) 13 SCC 738
   • Once the Public Prosecutor opposes bail in a commercial quantity matter, the court may grant bail only if it is satisfied that:
     • There are reasonable grounds to believe the accused is not guilty, and
     • He is not likely to commit any offence while on bail.
   • These are additional, mandatory conditions on top of usual CrPC standards.
2. State of Kerala v. Rajesh, AIR 2020 SC 721
   • Reiterates that Section 37 is a special provision whose conditions are sine qua non for granting bail.
   • Clarifies that the expression “reasonable grounds” means something more than a mere prima facie case; it requires substantial probable causes for believing that the accused is not guilty.
   • Warns that a liberal approach in NDPS bail matters is “uncalled for”.
3. Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100
   • Summarises that, in addition to giving the public prosecutor an opportunity to oppose bail, the court must be satisfied on:
     • Reasonable grounds to believe the accused is not guilty.
     • Reasonable grounds to believe the accused is not likely to commit any offence while on bail.
   • Clarifies that at the bail stage, the court is not pronouncing an acquittal but conducting a limited, yet higher-threshold, assessment.
4. Union of India v. Ajay Kumar Singh, 2023 SCC OnLine SC 346
   • Holds that bail in commercial quantity NDPS cases cannot be granted by ignoring or overlooking Section 37; the twin conditions are implicit and mandatory.
5. State of Meghalaya v. Lalrintluanga Sailo, 2024 SCC OnLine SC 1751
   • Reaffirms that Section 37(1)(b)(ii) requires the court to record satisfaction on both: (i) not guilty and (ii) not likely to commit an offence while on bail. These are cumulative and not alternative conditions.
   • Again, condemns a liberal approach to NDPS bail as “impermissible”.

The High Court carefully aligns itself with this line of authority, treating Section 37 as a powerful statutory barrier against bail in commercial quantity NDPS offences.

5.3.3 Application to the Petitioner’s Case

On the facts, the Court notes:

• The prosecution has allegedly collected “sufficient material” linking the petitioner to possession of 2.007 kg of charas.
• There is “nothing on record” to show that the petitioner would not indulge in similar offences if released on bail.

Thus, the Court concludes that:

• It cannot be satisfied that there are “reasonable grounds” to believe the petitioner is not guilty.
• Nor can it be satisfied that he is not likely to commit any offence while on bail.

On this basis, the petitioner is held to have failed to satisfy the twin conditions of Section 37; bail is therefore impermissible.

Notably, the Court does not undertake a detailed factual critique of the prosecution story (e.g., on recovery, seizure procedure, or witness credibility). This is consistent with Supreme Court direction that at the bail stage in NDPS commercial quantity cases, the court should not embark on an elaborate evaluation of evidence but instead focus on whether the statutory conditions for bail are met.

5.4 Delay, Speedy Trial, and Section 37

5.4.1 Petitioner’s Contention

The petitioner argued that:

• He has been in custody for about 1 year and 10 months.
• Only 7 (or 8) of 15 witnesses had been examined, indicating a slow trial.
• This delay infringes his fundamental right to a speedy trial under Article 21 of the Constitution, thereby justifying bail despite Section 37.

5.4.2 Court’s Assessment of Delay

The High Court examined certified copies of the trial court’s order sheets and concluded:

• Approximately eight witnesses had been examined over a period of around one year and three months from the date of framing of charges (27.04.2024 to 29.07.2025).
• Some adjournments, including those when the Kullu–Mandi national highway was blocked by heavy rain, were due to factors beyond the control of the prosecution.
• There was no indication of deliberate or culpable delay on the part of the prosecution.

On these findings, the Court held that:

• The pace of the trial did not reflect any violation of the right to a speedy trial.
• Consequently, the argument that the petitioner deserves bail on account of violation of his speedy trial right cannot be accepted.

5.4.3 Interplay with Section 37

Although not stated in so many words, the structure of the reasoning implies that:

• Even where Article 21 considerations are invoked, courts are expected to examine whether delay is substantial, unjustified, and attributable to the State before considering it as a ground to relax Section 37.
• In this case, the combination of:
  • ongoing progress in trial,
  • unavoidable logistical disruptions (road blockade due to heavy rains), and
  • absence of mala fides or negligence,
  led the Court to hold that the high threshold for overriding Section 37 based on Article 21 was not met.

The decision therefore reflects a conservative approach to using delay as a basis for bail in NDPS commercial quantity cases, demanding a very strong factual foundation of prolonged, unjustifiable incarceration before Section 37 can be diluted or bypassed.

5.5 No Pronouncement on Merits

The judgment ends with the familiar caveat in paragraph 25 that the observations made are confined to deciding the bail petition and shall have no bearing on the merits of the case at trial. This is particularly important in NDPS cases, where:

• Bail decisions often rely on a provisional acceptance of the prosecution narrative;
• A trial may subsequently expose significant lacunae in search, seizure, chain of custody, or witness testimony.

By preserving the trial court’s freedom to assess evidence independently, the High Court maintains the doctrinal distinction between provisional liberty adjudication and final guilt determination.

6. Complex Concepts Simplified

6.1 “Commercial Quantity” under the NDPS Act

The NDPS Act categorizes seized quantities as:

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

“Commercial quantity” attracts:

• Harsher minimum sentences, and
• The strict bail embargo of Section 37.

In this case, 2.007 kg of charas is undisputedly a commercial quantity, hence Section 37 applies.

6.2 Section 37 and the “Twin Conditions”

For certain NDPS offences (including all commercial quantity cases), Section 37 requires:

1. The Public Prosecutor must be given a chance to oppose bail.
2. If opposed, the court can grant bail only if it is satisfied that:
   • There are reasonable grounds to believe that the accused is not guilty of the offence; and
   • The accused is not likely to commit any offence while on bail.

These conditions are:

• Mandatory – the court cannot ignore them.
• Cumulative – both must be met, not just one.
• Additional – they are on top of regular CrPC bail considerations.

6.3 “Reasonable Grounds” vs “Prima Facie Case”

Supreme Court authorities (e.g., State of Kerala v. Rajesh, Shiv Shanker Kesari) clarify that:

• A prima facie case is a low threshold: whether there is some evidence indicating involvement.
• “Reasonable grounds to believe that the accused is not guilty” is a higher standard. It requires:
  • “Substantial probable causes” for believing the accused is not guilty, and
  • Facts and circumstances sufficient to justify a strong, though not conclusive, belief of innocence.

At the bail stage in Section 37 cases, the court is not required to conclusively find the accused innocent, but must be satisfied that the materials substantially favour the accused’s non-involvement.

6.4 “Caught Red-Handed”

In ordinary language, being “caught red-handed” means being apprehended in the very act of committing an offence. Legally, as exemplified in Madhu Limaye, this has implications for:

• The necessity of formally communicating grounds of arrest – if the offence is obvious, the law presumes the accused knows why he is being arrested.
• The strength of the initial case for the prosecution at the bail stage – being caught red-handed often makes it harder for an accused to show “reasonable grounds” of not being guilty.

6.5 Right to a “Speedy Trial”

The “right to a speedy trial” flows from Article 21 of the Constitution, as interpreted by the Supreme Court. It generally means:

• The State must conduct investigations and trials within a reasonable time, without undue and unjustified delay.
• Prolonged incarceration of an undertrial without progress in the case can violate this right, potentially entitling the accused to bail or even quashing in extreme cases.

However, in NDPS commercial quantity matters:

• Courts are cautious to ensure that delay is substantial, unjustifiable, and State-attributable before granting bail in the teeth of Section 37.
• Unavoidable disruptions (such as natural calamities or road blockages) are generally not counted as blameworthy delay.

7. Impact and Implications

7.1 Reinforcement of a Strict NDPS Bail Regime

The decision in Man Bahadur Singh:

• Strongly aligns the Himachal Pradesh High Court with the strictest reading of Section 37 NDPS, as repeatedly affirmed by the Supreme Court.
• Serves as a clear precedent that in commercial quantity NDPS cases, bail will be the exception, not the rule, and only on the basis of compelling material indicating non-guilt and a low risk of re-offending.

For future NDPS bail applications in Himachal Pradesh, this judgment provides a robust template that trial courts and single judges of the High Court are likely to follow.

7.2 Limited Scope for Technical Challenges to Arrest in NDPS Bail

By dismissing the challenge based on alleged non-communication of grounds of arrest in the face of:

• a red-handed apprehension, and
• an arrest memo clearly mentioning the offence,

the Court conveys that:

• Technical or formal defects in the arrest documentation, without demonstrated prejudice, will rarely justify bail in NDPS commercial quantity cases.
• Defence strategies premised solely on alleged verbal non-communication of grounds of arrest will have limited traction where the factual context makes the grounds obvious.

Once the Supreme Court decides Mihir Rajesh Shah, there may be a recalibration of this approach, but until then, this judgment stands as a firm statement of the current law as understood by the High Court.

7.3 High Threshold for Delay-Based Bail in NDPS Cases

The Court’s treatment of delay underscores that:

• Moderate periods of custody (around two years) with ongoing examination of witnesses and plausible logistical obstacles do not automatically amount to a breach of the right to a speedy trial.
• To secure bail in NDPS cases on Article 21 grounds, an accused will likely have to show:
  • Significantly longer incarceration, or
  • Clear, unjustified delay attributable to the prosecution or the court system, and
  • Some degree of prejudice, beyond mere passage of time.

This places a practical onus on defence counsel, in future cases, to:

• Meticulously document instances of prosecutorial inaction, non-production of witnesses, or avoidable adjournments, rather than simply relying on the total duration of custody.

7.4 Guidance for Trial Courts and Investigating Agencies

For trial courts:

• The judgment emphasises the importance of maintaining detailed order sheets, recording genuine reasons for adjournments (such as road blockages due to natural events).
• Such records assist higher courts in distinguishing bona fide delays from culpable ones when deciding bail applications.

For police and investigating agencies:

• The decision reiterates the importance of a properly drafted arrest memo that clearly mentions:
  • Sections of law invoked, and
  • Nature of the alleged offence (e.g., possession of narcotic contraband).
• This can neutralise later claims that the accused was unaware of the reasons for arrest.

8. Conclusion

Man Bahadur Singh v. State of Himachal Pradesh is a reportable judgment that consolidates and applies the Supreme Court’s stringent jurisprudence on bail in NDPS cases involving commercial quantity. Its key contributions may be distilled as follows:

• It reinforces the primacy of Section 37 NDPS Act, making clear that the twin conditions of “not guilty” and “not likely to commit an offence on bail” are indispensable predicates for bail in commercial quantity cases.
• It treats challenges based on non-communication of grounds of arrest as largely technical and non-fatal where the accused is caught red-handed and the arrest memo clearly specifies the offence, especially absent proof of prejudice.
• It adopts a cautious approach to Article 21 speedy trial arguments in NDPS matters, requiring concrete evidence of culpable delay before using such arguments to soften the rigour of Section 37.

The judgment sends a clear message: in serious NDPS prosecutions, particularly those involving commercial quantity, bail will be granted only in rare and well-justified circumstances backed by a strong evidentiary foundation, both as to the accused’s non-involvement and the absence of risk of future offending. Within the Himachal Pradesh jurisdiction, this decision is likely to shape NDPS bail adjudication for the foreseeable future, subject, of course, to any evolving guidance from the Supreme Court.