No bail for driver of car with 1.853 kg charas; grounds-of-arrest rule does not reach pre-Mihir Shah arrests
Justice Rakesh Kainthla held that every occupant of a vehicle is prima facie in conscious possession of contraband found in it, that the Section 37 twin conditions were not met, and that the Supreme Court made its grounds-of-arrest ruling prospective.
The Himachal Pradesh High Court has refused regular bail to Dupal Singh, the driver of a car from which police in Bilaspur district recovered 1.853 kilograms of charas in April 2025. Justice Rakesh Kainthla, sitting as a single judge, rejected all three planks of the petition: that the packet belonged to the passenger who tried to push it along the floor with his feet, that about seventeen months in custody without a concluded trial violated the right to a speedy trial, and that the arrest was bad because the grounds of arrest were never supplied. On the last point the court held, as it has in a series of recent orders, that the Supreme Court made its ruling in Mihir Rajesh Shah v. State of Maharashtra prospective, and that a person arrested before that judgment cannot use it to get out.
A packet pushed under the seat
The petition and the police status report describe the same roadside stop at different times of day. According to the petition, police intercepted car HP92A-0203 on 5 April 2025 at about 5 a.m. The status report says a nakka had been set up that day at Parsola and the car was stopped at about 8.25 p.m. Either way, two men were inside. The petitioner was driving. Jai Chand sat beside him.
Police asked the driver for his documents. The passenger, the status report says, became frightened and tried to push something along the floor with his feet. That made the police suspicious. They associated one Pankaj Kumar as an independent witness, searched the vehicle and found a packet containing 1.853 kilograms of charas. Both occupants were arrested. The Forensic Science Laboratory later reported the material to be an extract of cannabis.
The charge sheet was filed on 4 June 2025 for offences under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act. The case was listed before the trial court for recording prosecution witnesses on 3 October 2026. A second case, FIR No. 94 of 2022 registered on 31 May 2022, is pending against the petitioner under the same two sections.
The petition stressed that the petitioner is not the registered owner of the car, that nothing was recovered from his person, that the Special Judge at Ghumarwin had twice granted him interim bail and he had complied with every condition, and that he is a permanent resident of Mandi district with roots in society. Custodial interrogation was no longer needed, it said, because the investigation was over, and he had spent about seventeen months in custody with the trial nowhere near its end.
What was argued
Mr Sanjeev Bhushan, Senior Advocate, appearing with Ms Meenakshi Katoch for the petitioner, argued that his client was innocent and falsely implicated. The co-accused had tried to push the packet away on seeing the police, which showed who really possessed it. The grounds of arrest had not been supplied, in violation of the petitioner's constitutional right. He relied on Prabir Purkayastha v. State (NCT of Delhi), 2024 INSC 414, on the Supreme Court's order of 1 April 2026 in Dr Rajinder Rajan v. Union of India, and on the Kerala High Court's decision in Noushad v. State of Kerala, 2025:KER:54866.
Mr Ajit Sharma, Deputy Advocate General, replied that the petitioner was travelling in the very vehicle from which a commercial quantity was recovered, so Section 37 of the NDPS Act applied and its twin conditions had not been satisfied. The petitioner had criminal antecedents and would commit a similar offence if released. He had been arrested before Mihir Rajesh Shah, 2025 SCC OnLine SC 2356, was delivered, so no constitutional right had been violated. The trial, he said, was progressing normally.
Every occupant, not just the one with his feet on the packet
Justice Kainthla began with the general bail parameters collected by the Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314, a passage that runs from Justice Krishna Iyer's formulation in Gudikanti Narasimhulu through Prahlad Singh Bhati, Ram Govind Upadhyay, Kalyan Chandra Sarkar and Brijmani Devi v. Pappu Kumar. The eight factors listed in Prasanta Kumar Sarkar v. Ashis Chatterjee are among them: whether there is a prima facie ground to believe the accused committed the offence, the nature and gravity of the accusation, the severity of the punishment, the danger of absconding, the character and standing of the accused, the likelihood of the offence being repeated, the risk of witnesses being influenced and the danger of justice being thwarted. He also set out the rule in State of Rajasthan v. Balchand, (1977) 4 SCC 308, that the normal rule is bail, not jail, except where the gravity of the crime or the risk of the accused fleeing, repeating offences or intimidating witnesses suggests otherwise.
The recovery here was from a vehicle the petitioner was driving. The judge relied on Madan Lal v. State of H.P., (2003) 7 SCC 465, where contraband was found in a vehicle and the Supreme Court held that all the occupants were in conscious possession of it. The accused in that case were travelling together in a vehicle that was not a public vehicle, were known to each other, and had not explained how they came to be travelling together. The judgment explains that possession under Section 20 must be conscious, that possession may be constructive rather than physical, and that once possession is established, the person who claims it was not conscious must prove it, because how he came to possess the article is within his special knowledge. Sections 35 and 54 of the Act supply the statutory presumptions that place that burden on the accused.
So the petitioner was prima facie in possession of 1.853 kilograms of charas and the burden shifted to him. The argument about the passenger pushing the packet did not discharge it. The fact that the co-accused tried to push the packet towards the petitioner, the judge said, does not rule out the petitioner's possession; what it establishes is the co-accused's knowledge of what was in the packet. That evidence was not enough, at this stage, to hold that the petitioner was not in possession.
The Central Government has notified one kilogram of charas as the commercial quantity. The recovery was nearly twice that. Section 37 therefore applied.
Section 37 leaves no room for the speedy-trial argument
Section 37(1)(b) bars bail in a commercial-quantity case unless the public prosecutor has been heard and the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offence while on bail. The judgment collects the Supreme Court authority on what that means. Union of India v. Niyazuddin, (2018) 13 SCC 738, holds that without that satisfaction the accused cannot be released. State of Kerala v. Rajesh, AIR 2020 SC 721, explains that the section opens with a non-obstante clause and is framed in the negative, that the phrase reasonable grounds means something more than prima facie grounds and requires substantial probable causes for believing the accused is not guilty, and that if either condition is not satisfied the ban on bail operates. Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100, adds, through Shiv Shanker Kesari, that the court is not being asked to record a finding of not guilty, only to see whether reasonable grounds for such a belief exist. Union of India v. Ajay Kumar Singh, 2023 SCC OnLine SC 346, and State of Meghalaya v. Lalrintluanga Sailo, 2024 SCC OnLine SC 1751, hold that a bail order which ignores Section 37 is impermissible; the latter calls the Section 37 finding a sine qua non and the two conditions cumulative, not alternative.
Applying that standard, the judge found that the prosecution had collected sufficient material to connect the petitioner prima facie with the crime, and there was nothing on record to show he would not offend again if released. The twin conditions were not satisfied.
That also answered the submission that bail is the rule and jail the exception. The judge cited Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372, for the proposition that in NDPS cases carrying a minimum sentence of ten years the position is reversed:
Negation of bail is the rule, and its grant is an exception.
The petitioner, the court held, could not claim bail on the ground that his right to a speedy trial had been violated.
Grounds of arrest: a rule for arrests made after the ruling
The third argument was the failure to communicate the grounds of arrest. Justice Kainthla dealt with it briskly. “This submission is only stated to be rejected,” he wrote.
The reason lies in paragraph 58 of Mihir Rajesh Shah, which the judgment quotes. The Supreme Court there acknowledged that no consistent or binding requirement of written communication of grounds of arrest had previously existed for all offences, and said that fairness and legal discipline demanded that the procedure it was affirming “shall govern arrests henceforth”. A coordinate bench of the Himachal Pradesh High Court read that as making the direction prospective in Kabir Khan v. State, 2025:HHC:39246. The Supreme Court itself said so in State of Meghalaya v. Sonam Raghuvanshi, 2026 SCC OnLine SC 1392, describing the grounds-of-arrest requirement as judge-made law introduced by Mihir Rajesh Shah to give effect to Article 22(1), and holding that an accused arrested on 9 June 2025, before that judgment, could not rely on it.
The judge added his own court's record. In Arvind Kumar @ Chahna v. State of H.P., Cr.MP(M) No. 2329 of 2025, decided on 13 November 2025, the court had held the requirement prospective; a special leave petition against that order, SLP (Criminal) No. 797 of 2026, failed. In Harpreet Singh v. State of H.P., 2026:HHC:35196, the court had held that Mihir Rajesh Shah is prospective and that a petitioner cannot get bail without showing prejudice; the challenge to that decision, SLP (Crl.) No. 19039 of 2026, was decided against the petitioner on 13 October 2026, less than two weeks before this order.
Dupal Singh was arrested in April 2025, before Mihir Rajesh Shah. He was given an arrest memo recording that he was arrested for a non-bailable offence under Section 20 of the NDPS Act, and he showed no prejudice from not being given fuller details. Sonam Raghuvanshi distinguishes between non-service of grounds of arrest, which may vitiate the arrest, and non-furnishing of adequate reasons, where the court looks for prejudice; it also holds that an accused who sought findings on merits in earlier bail applications cannot go back and raise the grounds-of-arrest plea later.
The precedents cited for the petitioner did not help. Noushad and Prabir Purkayastha were decided before Mihir Rajesh Shah. Dr Rajinder Rajan did not consider whether the ruling was prospective or retrospective. The broader submission that a Supreme Court judgment declares the law and is therefore always retrospective was rejected as well: the Supreme Court had specifically said its judgment would apply from the date of pronouncement, and the High Court could not give it retrospective effect in violation of that direction.
The pending 2022 case
The status report's reference to FIR No. 94 of 2022 meant the petitioner had criminal antecedents under the same Act. Following Harpreet Singh, the judge held that the relevance of antecedents cannot be ignored where they suggest the petitioner is likely to commit a similar offence on release. The prosecution's apprehension, he said, could not be called baseless. That was a further reason to refuse bail.
Order
No other point was urged. The petition, Cr.MP(M) No. 1893 of 2026, was dismissed. The court recorded that its observations were confined to the disposal of the bail petition and would have no bearing on the merits of the case. The matter was reserved on 15 October 2026 and decided on 26 October 2026. The judgment is marked as not approved for reporting.