Suman Kumari vs State Of HP

Rakesh Kainthla, J

The petitioner has filed the present petition seeking regular bail in FIR No. 62 of 2025, dated 6.4.2025, registered at Police Station Dharamshala, District Kangra, HP, for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

It has been asserted that the petitioner was arrested on 6.4.2025 after a recovery of 1.246 kilograms of charas/cannabis was made from the house of the co-accused Sanjay Kumar alias Chappan. The petitioner had earlier filed a bail petition, which was registered as Cr.MP(M) No.2735 of 2025 and was dismissed on 9.1.2026. The prosecution has produced five witnesses, but they have not supported the prosecution's version. The investigating Officer had not conducted any spot testing through the Drug Detection Kit before the seizure of the contraband. The independent witnesses also denied that any testing was carried out on the spot. The sampling was not proper as the packets were mixed. Therefore, the petitioner has filed the present petition seeking regular bail.

The petition is opposed by filing a status report asserting that the police had set up a nakka at Sheela Chowk on 06.04.2025. They received secret information at 1:40 AM that Sanjay Kumar @ Chappan was selling charas from his home, and a huge quantity of charas could be recovered by searching the house. The police reduced the information into writing and sent it to the Supervisory Officer. The police associated Abhishek Anand and Vimoksh Upmanyu, and went to the house of Sanjay Kumar @ Chapan. Suman Kumari @ Varsha (the petitioner) and Sanjay Kumar @ Chapan were found in the house. The police told them about the information and searched the house. The police recovered a packet kept beneath the mattress, which was checked, and 1 kg 246 grams of cannabis was found in it. The police seized the cannabis and arrested the petitioner and Sanjay Kumar. The cannabis was sent to SFSL, and it was confirmed to be an abstract of cannabis and a sample of charas after the analysis. No other FIR has been registered against the petitioner, Suman Kumari. The charge sheet was filed before the learned Additional Sessions Judge-II, Dharamshala, District Kangra, H.P. and the matter is listed for recording the statements of witnesses on 10.9.2026. The prosecution has examined 05 five witnesses out of 19 cited. Hence, the status report.

I have heard Mr Rahul Kumar, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General for the respondent-State.

Mr Rahul Kumar, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The independent witnesses have not supported the prosecution's case, which makes the prosecution's case highly suspect. The Investigating Officer had not tested the contraband on the spot before mixing it, and the representative samples were not drawn. The petitioner has remained inside the Jail for more than one year, and her right to a speedy trial is being violated. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the following judgments in support of his submissions: -

(i) Shiranjana Buddha Vs. State of H.P., 2025 NCHHC 39626;

(ii) Parvin Kumari Vs. Narcotics Control Bureau, Sub Zone, Mandi, Cr.MP(M) No. 654 of 2024, decided on 29.4.2024;

(iii) Rajadurai Vs. State of Tamil Nadu, SLP (Crl.) No. 4729 of 2026, decided on 5.5.2026;

(iv) Mansoor Ali Vs. State of H.P., 2026 NCHHC 5600;

(v) Netram Vs. State of Rajasthan, 2014(1) Crl. LR (Raj) 163;

(vi) Laxman Thakur Vs. State (Govt. of NCT of Delhi), 2023(4) JCC 2571;

(vii) Vishwanath Vs. State of Maharashtra, 2005 ALL (MR (Cri) 2293) and

(viii) Venktesh Shiva Permal Vs. State of Maharashtra 2024 NCBHC-AS 3666.

Mr Jitender Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner had earlier filed a bail petition, which was dismissed by this Court. A subsequent bail petition only lies when there is a change in the circumstances. The mere fact that an independent witness has not supported the prosecution's case cannot constitute any change in the circumstances. Hence, he prayed that the present petition be dismissed.

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

It is undisputed that the petitioner had earlier filed a bail petition, which was registered as Cr.MP(M) No. 2735 of 2025 and was dismissed by this Court on 9.1.2026 after holding that the prosecution had collected sufficient material to prima facie connect the petitioner to the commission of the crime, and the petitioner had not satisfied the conditions laid down under Section 37 of the NDPS Act. These considerations have not changed.

It was submitted that, as per the status report, the Investigating Officer had mixed the contraband before taking a sample, and the sample cannot be said to be representative in nature. This submission cannot be accepted. It was laid down by the Supreme Court in Sumit Tomar v. State of Punjab, (2013) 1 SCC 395, that merely mixing the contents of bags cannot result in any benefit to the accused unless some prejudice is shown. It was observed: -

"11. The next contention, according to the learned Senior Counsel for the appellant, is that the prosecution has committed an irregularity by mixing up the contraband found in the bags and taking samples thereafter. We find no substance in the said argument. The present appellant was driving the car in which two bags of contraband were loaded. He further pointed out that in view of Section 15(c) of the NDPS Act, which prescribes a minimum sentence of 10 years and which may extend to 20 years where the contravention involves a commercial quantity, the mixing of two bags is a grave irregularity which affects the interest of the appellant. We are unable to accept the said contention.

It is true that Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a), where the contravention involves a small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub-section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves a commercial quantity, the rigorous imprisonment shall not be less than 10 years, but may extend to 20 years, and the person shall also be liable to a fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Merely because diflerent punishments have been prescribed depending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 gm each, the quantity measured comes to 69.50 kg, which is more than the commercial quantity (small quantity 1000 gm/commercial quantity 50 kg and above). In view of the same, the contention that the police should have taken two samples each from the two bags without mixing is liable to be rejected." (Emphasis supplied)

Therefore, in view of the binding precedent of the Hon'ble Supreme Court, the petitioner/accused cannot derive any advantage from the fact that the Investigating Officer had mixed the samples before taking the sample, and the judgments cited on the petitioner's behalf will not help him.

It was submitted that the independent witnesses have not supported the prosecution's case, and the accused is entitled to bail. This submission is only stated to be rejected. It was laid down by the Delhi High Court in Dineet v. State (NCT of Delhi), 2025 SCC OnLine Del 8603, that it is impermissible for the bail Court to appreciate the evidence recorded during the trial and grant bail on the ground that the independent witness has not supported the prosecution's case. It was observed:

"17. Addressing Mr Mahajan's submissions, it is pertinent to note that nearly the entirety of the petitioner's case rests upon the assumption that this Court may enter into witness testimonies and evidence to determine contradictions and the hostility of witnesses at the stage of bail.

However, it is trite that the same is not within the power of this Court at the stage of bail, as laid down in Satish Jaggi v. State of Chhattisgarh (2007) 11 SCC 195 : (2008) 1 SCC (Cri) 660, paragraphs 11 and 12 of which merit reproduction:

"11. On the aforesaid reasoning, the learned Chief Justice thought it fit to grant bail. Mr. A.K. Ganguli, learned Senior Counsel appearing on behalf of the appellant complainant, Mr. Amarendra Sharan, learned ASG appearing on behalf of CBI and Mr. Rajiv Dutta, learned Senior Counsel appearing on behalf of the State of Chhattisgarh strenuously contended that having regard to the observations and findings of the learned Chief Justice as recorded above, it clearly shows that the learned Chief Justice while granting bail to the accused virtually decided the case on merit which amounts to acquitting the accused of the criminal charge levelled against him without trial. Per contra, Mr Vivek Tankha, learned Senior Counsel, contended that now the evidence is closed, so there is no question of the accused tampering with the prosecution witnesses or fleeing from justice. He further contended that now the arguments in the case have finally started, and the arguments of the prosecution are over, and only the defence is to give its reply. He, accordingly, contended that the bail granted by the learned Chief Justice need not be disturbed.

Normally, if the offence is non-bailable, bail can also be granted if the facts and circumstances so demand. We have already observed that in granting bail in a non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society were not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress, and if such findings are allowed to stand, it would seriously prejudice the prosecution's case. At the stage of granting bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of the credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial."

By virtue of the aforementioned paragraphs from the Hon'ble Supreme Court's decision in Satish Jaggi, it is evinced that this Court, at the stage of Bail, cannot look into the allegations of PW2 being a witness who has turned hostile, nor apply its mind to alleged contradictions in his statement under Section 161 of the CrPC when compared with his testimony in Court, as the same would amount to appreciation of the evidentiary value of his statement and testimony, and this is an exercise that is only to be conducted during the course of trial.

The same has been relied upon by the Hon'ble Supreme Court in the judgment of State of Karnataka v. Sri Darshan 2025 SCC OnLine SC 1702, with the following paragraphs of this decision reproduced for ready reference:

"20.2.5. Further, such an approach of the High Court is contrary to the judicial precedents of this court, including Satish Jaggi v. State of Chhattisgarh (supra), Kanwar Singh Meena v. State of Rajasthan4, wherein it was held that courts, while considering bail, should not assess the credibility of witnesses, as this function squarely lies within the domain of the trial Court. Thus, the impugned order of the High Court violates this principle by commenting on the delay in the witness statements and imputing a lack of credibility at this stage" (emphasis supplied)

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"20.3.6. In the present case, the High Court also proceeded to analyse and discount the credibility of certain prosecution witnesses and forensic material. It observed contradictions in the eyewitness statements concerning the overt acts of the accused (para 26). It expressed doubts about the prosecution's explanation for the delay in recording the statements of CW. 76 and CW. 91 (para 27). It questioned the timing of the doctor's supplementary opinion and weighed its evidentiary worth (para 31). As already pointed out, the credibility or reliability of witnesses is a matter for the trial Court to determine after full-fledged cross-examination. It is a trite law that statements recorded under section 161 Cr. P.C. are not substantive, and their evidentiary value can only be determined after cross-examination during trial. Any opinion rendered at the bail stage risks prejudging the outcome of the trial and must be avoided. Thus, the court's assessment of these aspects amounts to a premature appreciation of the probative value of prosecution evidence." (emphasis supplied)

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"24. On a cumulative analysis, it is evident that the order of the High Court suffers from serious legal infirmities. The order fails to record any special or cogent reasons for granting bail in a case involving charges under Sections 302, 120B, and 34 IPC. Instead, it reflects a mechanical exercise of discretion, marked by significant omissions of legally relevant facts. Moreover, the High Court undertook an extensive examination of witness statements at the pre-trial stage, highlighting alleged contradictions and delays - issues that are inherently matters for the trial Court to assess through cross-examination. The trial Court alone is the appropriate forum to evaluate the credibility and reliability of witnesses. Granting bail in such a serious case, without adequate consideration of the nature and gravity of the offence, the accused's role, and the tangible risk of interference with the trial, amounts to a perverse and wholly unwarranted exercise of discretion. The well-founded allegations of witness intimidation, coupled with compelling forensic and circumstantial evidence, further reinforce the necessity for cancellation of bail. Consequently, the liberty granted under the impugned order poses a real and imminent threat to the fair administration of justice and risks derailing the trial process. In light of these circumstances, this Court is satisfied that the present case calls for the exercise of its extraordinary jurisdiction under Section 439(2) Cr. P.C." (emphasis supplied)

Drawing inspiration from the judgment in Darshan, the hostility of a witness cannot be interpreted as an automatic declaration of the prosecution's case as unconvincing, and thereby, in essence, result in the conduction of a mini-trial at the stage of bail and return findings upon the ex facie merit of the accused's innocence/guilt.

It was laid down by the Hon'ble Supreme Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in serious offences, the Trial Court or the High Court should not entertain the bail application of the accused after the commencement of the trial and grant bail because of some discrepancy in the testimony. It was observed: -

"14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath to entertain the bail application of the Accused.

Over a period of time, we have noticed two things, i.e.,

(i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach its conclusion, which may either result in the conviction of the Accused or the acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only if the trial gets unduly delayed and that, too, for no fault on the part of the Accused, the Court may be justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed."

Similarly, it was held by this Court in Suraj Singh v. State of H.P., 2022 SCC OnLine HP 268 that the Court exercising bail jurisdiction cannot appreciate the contradictions in the evidence. It was observed:

Petitioner has placed reliance on the statements of witnesses already recorded by the learned Special Judge, in support of his argument to the effect that, from perusal of these statements, reasonable grounds can be entertained for concluding prima facie innocence of the petitioner. The arguments raised on behalf of the petitioner deserve to be rejected for the reason that this Court, while dealing with the bail application, will not appreciate the evidence being recorded during the trial. Undisputedly, only some of the witnesses out of the entire list of witnesses relied upon by the prosecution have been examined. In these circumstances, it is not prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence.

This Court has already held that the petitioner was prima facie found in possession of the commercial quantity of charas. The findings recorded by the Court cannot be reviewed by this Court while exercising the jurisdiction to grant a subsequent bail petition. It was laid down by the Hon'ble Supreme Court in State of M.P. v. Kajad, (2001) 7 SCC 673: 2001 SCC (Cri) 1520: 2001 SCC OnLine SC 1070, that it is impermissible to review the earlier order of bail in the subsequent bail petition, and the Court can only consider the change in circumstances. It was observed at page 676:

It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. Successive bail applications are indeed permissible under the changed circumstances. But without the change in the circumstances, the second application would be deemed to be seeking a review of the earlier judgment, which is not permissible under criminal law, as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments.

Therefore, it is impermissible for this Court to release the petitioner on bail because the independent witness has not supported the prosecution's case.

It was submitted that the prosecution has failed to complete the evidence, which violates the petitioner's right to a speedy trial, and the petitioner is entitled to bail on this consideration. This submission will not help the petitioner. The petitioner has not filed the copies of the order sheet to demonstrate the delay. The petitioner was prima facie found in possession of a commercial quantity of charas, and she is not entitled to bail without satisfying the twin conditions laid down under Section 37 of the NDPS Act. It was laid down by the Hon'ble Supreme Court in Union of India vs. Vijin K. Varghese 2025: INSC:1316 that bail cannot be granted on the ground of prolonged incarceration without satisfying the twin conditions laid down under Section 37 of the NDPS Act. It was observed: -

"17. The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding is not a casual observation. It is the statutory threshold under Section 37(1)(b)(ii), which would disentitle the discretionary relief and grant of bail must necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the prosecution's assertions of operative control and antecedent involvement, risks trenching upon the appreciation of evidence which would be in the domain of the trial court at first instance.

This Court ordinarily shows deference to the discretion exercised by the High Court while considering the grant of bail. However, offences involving a commercial quantity of narcotic drugs stand on a distinct statutory footing. Section 37 enacts a specific embargo on the grant of bail and obligates the Court to record satisfaction on the twin requirements noticed above, in addition to the ordinary tests under the Code of Criminal Procedure.

In the present case, the High Court has not undertaken the analysis of those twin requirements with reference to the material placed by the prosecution. The orders dated 22.01.2025 and 12.03.2025 do not advert to the allegation regarding the respondent's prior involvement in a seizure of narcotic drugs and psychotropic substances only days prior to the seizure forming the subject matter of the present complaint, nor do they engage with the prosecution's assertion as to the respondent's role in arranging, importing, clearing and supervising the consignments. The omission to consider these factors bears directly upon the statutory satisfaction required by Section 37(1)(b)."

A similar view was taken in Union of India v Namdeo Ashruba Nakade SLP (Crl.) 9792/2025, decided on 07.11.2025, wherein it was observed:

"11. In the present case, this Court finds that though the Respondent-accused was in custody for one year, four months, and charges have not been framed, yet the allegations are serious inasmuch as not only is the recovery much in excess of the commercial quantity, but the Respondent-accused allegedly got the cavities ingeniously fabricated below the trailer to conceal the contraband.

Prima facie, this Court is of the opinion that the Respondent-accused is involved in drug trafficking in an organised manner. Consequently, no case for dispensing with the mandatory requirement of Section 37 of the NDPS Act is made out in the present matter."

A similar view was taken in State of Punjab v. Sukhwinder Singh, 2026 SCC OnLine SC 671, wherein it was observed: -

It is well-settled that in matters involving recovery of contraband in commercial quantity, the twin conditions under Section 37(1)(b)(ii) of the NDPS Act are mandatory and entail no relaxation merely on the ground that the accused has undergone prolonged incarceration during the pendency of trial. The provision casts upon the Court a duty to record, before enlarging an accused on bail, its satisfaction on two cumulative conditions, first, that there exist reasonable grounds for believing that the accused is not guilty of the offence charged; and second, that he is not likely to commit any offence while on bail. The recording of such satisfaction is not a mere formality but a mandatory precondition, the non-observance of which vitiates the grant of bail. This Court, in Kashif (supra), has held in no uncertain terms that the recording of satisfaction on the twin conditions under Section 37 is mandatory and not merely directory, and that an order granting bail without such recorded satisfaction stands vitiated and cannot be sustained. The same view stands reiterated in Lalrintluanga Sailo (supra).

The impugned order, on its own showing, does not record the satisfaction mandated under Section 37(1)(b) (ii) of the NDPS Act. Far from recording such satisfaction, the High Court has gone on to observe that 'the rigours of Section 37 of the NDPS Act can be diluted bearing in mind the right to a speedy trial.' Such an approach is plainly contrary to the settled law laid down by this Court and deserves to be set aside on this ground alone. The right to speedy trial, rooted in Article 21 of the Constitution, is undoubtedly a precious Constitutional right. That said, in matters governed by a special enactment such as the NDPS Act, particularly where the recovery is of a commercial quantity, the said right under Article 21 must be exercised within the framework of Section 37 and cannot be pressed into service solely on the ground of delay to override it. The constitutional right under Article 21 and the special provision of law under Section 37, NDPS Act, are to be read harmoniously and not placed in opposition to each other. The High Court, by failing to record its satisfaction on the twin conditions under Section 37, has, in this Court's view, committed an error.

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The position of law on the grant of bail in matters involving the recovery of a commercial quantity of contraband under the NDPS Act is well settled. Section 37(1)(b)(ii) of the NDPS Act is cast in mandatory terms. Where the Public Prosecutor opposes the bail application, the Court can enlarge an accused on bail only upon recording its satisfaction on two cumulative conditions: first, that there are reasonable grounds for believing that the accused is not guilty of the offence; and second, that the accused is not likely to commit any offence while on bail. The recording of such satisfaction is not a mere formality but a jurisdictional requirement. This Court in Kashif (supra) has held, in plain terms, that the non-recording of the twin satisfaction, being mandatory in nature, renders an order granting bail unsustainable. A similar view has been expressed in Lalrintluanga Sailo (supra) and Ajay Kumar Singh (supra).

When the impugned order is tested against that settled position, it becomes apparent that paragraph 8 of the impugned order, which carries the weight of the reasoning, does not contain a finding on either of the twin conditions prescribed by Section 37(1)(b)(ii) of the NDPS Act. What the High Court has, instead, proceeded on is the proposition that "the rigours of Section 37 of the NDPS Act can be diluted bearing in mind the right to a speedy trial". The right to speedy trial under Article 21 of the Constitution is undoubtedly a valuable constitutional guarantee, but in the context of a special statute such as the NDPS Act dealing with commercial quantity, that right has to be read alongside, and not in displacement of, the mandate of Section 37. The omission to record the twin satisfaction prescribed by the statute, it appears, may have escaped the attention of the High Court.

In Rajadurai (supra), the Hon'ble Supreme Court had granted bail on the ground that not a single witness had been examined. In the present case, five witnesses have been examined, and the matter is listed for recording the statements of the remaining witnesses; therefore, the cited judgment does not apply to the present case.

Therefore, the petitioner cannot claim bail because of the violation of his right to a speedy trial.

The status report filed by the State shows that the matter is listed on five dates, which shows the anxiety of the learned Trial Court to conclude the trial at its earliest. Therefore, the petitioner cannot claim that his trial is not likely to be completed soon. However, he is at liberty to approach the Court again if there is a delay in the progress of the trial.

No other point was urged.

In view of the above, the present petition fails, and it is dismissed. However, the petitioner is at liberty to file a bail petition in case his trial is not concluded expeditiously.

The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.