NDPS Act | High Court Cannot Ignore Mandatory Twin Conditions Under Section 37 While Granting Bail For Commercial Quantity: Supreme Court

"Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications," Supreme Court, in a significant ruling, held that compliance with the twin conditions stipulated under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is a mandatory prerequisite for granting bail in cases involving commercial quantities of contraband.

A bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh observed that a liberal approach which ignores these statutory mandates is impermissible in law, especially when dealing with organized drug trafficking networks.

The matter arose from an FIR registered in Punjab following the recovery of 1.465 Kg of heroin (commercial quantity) from two individuals in a vehicle. During the investigation, the co-accused disclosed that the respondent, Balraj Singh alias Billa, was directing the drug operations from inside Central Jail, Goindwal Sahib, using illegal mobile phones. While the Special Court rejected his bail, the High Court of Punjab and Haryana granted him regular bail citing his period of custody and the likelihood of a delayed trial.

The primary question before the court was whether the High Court’s order granting bail was in consonance with the settled principles of law concerning Section 37 of the NDPS Act. The Court also examined whether the respondent’s incarceration period of one year and seven months constituted "prolonged incarceration" sufficient to override the statutory bar under Section 37.

Mandatory Nature of Section 37 Twin Conditions

The Court emphasized that when a case involves a commercial quantity of narcotics, the court must satisfy itself of the twin conditions under Section 37: first, that there are reasonable grounds for believing the accused is not guilty, and second, that they are not likely to commit any offence while on bail. The bench noted that the High Court had granted bail without even a "bare perusal" or consideration of these conditions, rendering the order legally unsustainable.

Interpretation of "Reasonable Grounds"

Relying on the precedent in Collector of Customs v. Ahmadalieva Nodira, the Court reiterated that "reasonable grounds" means something more than mere prima facie grounds. It contemplates the existence of substantial and probable causes for believing that the accused is not guilty of the alleged offence. The Court observed that such a finding is a sine qua non for granting bail and cannot be bypassed.

"Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications."

Relevance of Criminal Antecedents

The Court took a grim view of the respondent's history, noting that he had three prior antecedents of a similar nature under the NDPS Act. It held that given this criminal record, it could not be concluded that the respondent was unlikely to commit further offences while on bail. The Court noted that the High Court erred in observing that antecedents alone cannot be a basis for refusing bail when the statutory bar of Section 37 is in play.

Defining Prolonged Incarceration

The bench addressed the argument of "prolonged incarceration" as a ground for bail under Article 21 of the Constitution. It observed that the application of this principle is not uniform and "prolonged incarceration" has not been definitively expounded by the Court. In the present case, the respondent had undergone only one year and seven months of custody out of a potential twenty-year sentence, which the Court deemed insufficient to warrant interference.

National Interest vs. Personal Liberty

The Court highlighted the gravity of drug trafficking, describing it as a "war waged against the nation" that affects the national economy and public health. It held that while personal liberty is vital, the sovereignty and security of the country must prevail in cases of organized drug supply. The bench remarked that the interest of justice for all is the paramount consideration.

"Should there be any conflict between the sovereignty of country and personal liberty, undoubtedly, the former shall prevail, particularly, when a war is waged against the nation, be it in the form of supply of drugs."

The Supreme Court allowed the appeal filed by the State of Punjab and set aside the High Court’s order dated October 15, 2025. The Court directed that the respondent, who had already surrendered pursuant to an interim order, shall remain in custody. The bench concluded that the High Court failed to apply the mandatory rigors of the NDPS Act, thereby necessitating the cancellation of the bail.

Date of Decision: June 2, 2026