Himachal HC refuses bail in NDPS case: 134 g heroin, five earlier NDPS FIRs; Section 37 not applying is no ground for bail

Summary

The Himachal Pradesh High Court has refused regular bail to a man found driving a car in which 134 grams of heroin was recovered, holding that he cannot be released merely because the rigours of Section 37 of the NDPS Act do not apply to a quantity below commercial quantity, and that his five earlier NDPS cases weighed against him. Justice Rakesh Kainthla held that six months in custody, without proof that the delay was due to the prosecution or the court, was not excessive, but left it open to the petitioner to return if the trial is not concluded expeditiously.

The petitioner, Surender Kumar, sought regular bail in F.I.R. No. 53 of 2026, dated 2 March 2026, of Police Station Sundernagar, District Mandi, for offences under Sections 21, 25 and 29 of the NDPS Act. As per the prosecution, the police stopped a vehicle with registration HP 31-9134 on 2 March 2026, found a black polythene packet containing 134 grams of heroin, and arrested the petitioner, who was driving, and the co-accused Rinku, who was in the front seat. The sample was found by the forensic laboratory to be diacetylmorphine. The police have completed the investigation and filed the chargesheet.

What each side argued

The petitioner argued that his mere presence in the vehicle, or his driving it, did not show possession, that the quantity was less than commercial quantity so that Section 37 does not apply and he was entitled to bail as of right, that the chargesheet had been filed, that custodial interrogation was not needed, that mere pendency of other cases was no reason to deny bail, and that six months had passed with no trial.

The State argued, through a status report, that five FIRs had been registered against him under the NDPS Act between 2022 and 2025, that he would commit a similar crime if released, and that the chargesheet had been filed before the Additional Sessions Judge, Sundernagar.

The court's decision

The Court restated the principles on bail from Supreme Court decisions, including the nature of the charge and evidence, antecedents and the likelihood of interference with witnesses, and the rule of bail and not jail except where there is risk of flight, repetition or intimidation, citing State of Rajasthan v. Balchand (1977) 4 SCC 308. On possession, it relied on Madan Lal v. State of H.P. (2003) 7 SCC 465 to say that all occupants of a vehicle can be in conscious possession of contraband, and held that prima facie the petitioner was found in possession of the heroin.

It noted that 25 grams is the small quantity and 250 grams the commercial quantity of heroin, so 134 grams was more than five times the small quantity, could not be meant for self-consumption, and its consumption adversely affects society. The submission that Section 37 does not apply was not acceptable: the petitioner cannot be released on bail merely because its rigours do not apply to his case.

On antecedents, the five NDPS FIRs showed that the prosecution's apprehension of repetition was justified. The Court relied on Champa v. State of H.P. (2025:HHC:28899), whose challenge failed in the Supreme Court in Champa Devi v. State of H.P., decided on 27 November 2025, and on Shakti Sharma v. State of H.P. (2026:HHC:33462). It found it difficult to follow a coordinate Bench judgment in Gurdeep Singh that granted bail despite antecedents. On custody, six months was not excessive given the quantity and its impact, and the petitioner had not filed order sheets to show that the delay was attributable to the Court or the prosecution.

The petition was dismissed. This does not prevent the petitioner from approaching the Court if the trial is not concluded expeditiously. The observations are confined to the disposal of the petition.

Provisions referred to

Narcotic Drugs and Psychotropic Substances Act, 1985 (Sections 21, 25, 29 and 37)

Official source: High Court of Himachal Pradesh. The PDF above is a copy from an open dataset of the court's public records.

This summary is prepared for general assistance only. It may contain errors and is not legal advice — rely on the full judgment.

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