Negation of Bail Is the Rule in NDPS Cases: Supreme Court Cancels Bail in 731 Kg Ganja Case, Calls Delay No Ground to Bypass Section 37

“Mandatory Conditions Under Section 37 NDPS Act Cannot Be Waived on Humanitarian Grounds or Surety by Relatives”, Supreme Court of India setting aside the Andhra Pradesh High Court’s bail order in a high-stakes drug trafficking case involving 731.075 kilograms of ganja—a commercial quantity under the NDPS Act. The bench comprising Justice Manmohan and Justice N.V. Anjaria emphasized that courts must not dilute the rigour of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, reiterating that the statutory bar on bail is mandatory, even in the face of prolonged custody and alleged humanitarian grounds.

The Court concluded that the High Court erred in granting bail to the respondent without recording the necessary statutory satisfaction under Section 37 and directed the respondent to surrender within two weeks.

731 Kg Ganja Seized from Lorry Owned and Driven by Accused

The case arose out of an incident dated 7 November 2023, when authorities recovered 731.075 kilograms of ganja—valued at over ₹2.91 crores—from a lorry owned and driven by the respondent, Namdeo Ashruba Nakade. The contraband was found ingeniously concealed in fabricated cavities under the trailer of the vehicle. Following the investigation, a chargesheet was filed on 3 May 2024, but as of November 2025, the trial had not yet commenced, and even charges had not been framed.

Despite the severity of the alleged offence and the volume of the contraband—which clearly falls within ‘commercial quantity’ under NDPS rules—the Andhra Pradesh High Court granted bail on 11 March 2025 in Criminal Petition No.727 of 2025, citing the filing of the chargesheet, delay in trial, and a voluntary undertaking by the respondent’s brother, who is a sepoy in the Indian Army, to ensure the accused’s presence during trial.

Can Bail Be Granted in Commercial Quantity NDPS Cases Without Fulfilling Section 37 Conditions?

The central legal issue before the Supreme Court was whether the High Court could validly grant bail in an NDPS case involving commercial quantity of drugs—without strict compliance with the twin conditions mandated under Section 37 of the NDPS Act.

Section 37 imposes a statutory embargo on granting bail in cases involving commercial quantity of narcotics unless:

1. The Public Prosecutor has been given an opportunity to oppose the bail application;
2. The court is satisfied that the accused is not guilty of such an offence; and
3. The court is satisfied that the accused is not likely to commit any offence while on bail.

The Additional Solicitor General, appearing for the Union of India, submitted that the High Court’s failure to record any satisfaction on these statutory requirements rendered its bail order unsustainable, relying extensively on the recent judgment in Narcotics Control Bureau v. Kashif, 2024 SCC OnLine SC 3848.

Delay Is Not a Carte Blanche to Override Statutory Bar on Bail

Rejecting the respondent’s argument that the delay in framing charges and trial commencement justified bail, the apex court held:

“Though the Respondent-accused was in custody for one year four months and charges have not been framed, yet the allegations are serious... the Respondent-accused allegedly got the cavities ingeniously fabricated below the trailer to conceal the contraband.”

The Court underscored that custodial delay cannot be a standalone ground to override the mandatory bar under Section 37, especially when the allegations suggest organized trafficking. It further clarified:

“As the accused has been charged with offences punishable with ten to twenty years rigorous imprisonment, it cannot be said that the Respondent has been incarcerated for an unreasonably long time.”

Court Criticizes Substitution of Judicial Satisfaction With Army Brother’s Surety

One of the High Court’s key reasons for granting bail was the affidavit and personal assurance of the respondent’s elder brother, a serving sepoy in the Indian Army, who volunteered to ensure the accused’s appearance before court.

The Supreme Court unequivocally rejected this line of reasoning:

“If the Respondent were to abscond, his brother cannot be sent to prison. In India, the alleged sins of an accused cannot be visited on his brother or other family members.”

Thus, the undertaking by a family member, however respectable or sincere, cannot substitute the judicial satisfaction required under Section 37(1)(b)(ii)—a legal bar that the Supreme Court called “a sine qua non” for granting bail in NDPS cases.

Drug Trafficking Is a Public Health Crisis: Court Cites UNODC, Indian Medical Literature, and Constitution

Significantly, the Court invoked Article 47 of the Constitution, which mandates the State to prohibit consumption of intoxicating substances injurious to health, and took judicial notice of the growing public health crisis caused by substance abuse. Citing the UNODC 2025 Report and Indian Journal of Community Medicine, the Court observed:

“Substance abuse not only affects individuals, families, and communities but also undermines various aspects of health including physical, social, political, cultural foundations, and mental well-being.”

In Ankush Vipan Kapoor v. National Investigation Agency, (2025) 5 SCC 155, previously cited with approval by the Court, it had noted:

“The ills of drug abuse seem to be shadowing the length and breadth of our country… Substance abuse is linked to social problems and can contribute to child maltreatment, spousal violence, and even property crime in a family.”

Accordingly, the Court emphasized that judicial discretion in NDPS bail matters must be exercised strictly within statutory boundaries, keeping in mind the societal impact of drug trafficking.

Bail Set Aside, Accused Must Surrender Within Two Weeks

Concluding that the High Court’s bail order violated settled principles under Section 37 NDPS Act, the Court allowed the appeal filed by the Union of India and directed the respondent to surrender:

“Accordingly, the present criminal appeal is allowed and the impugned order... is set aside. The Respondent-accused is directed to surrender within a period of two weeks.”

This judgment serves as a strong reaffirmation of the non-negotiable nature of Section 37 in cases involving commercial quantity under the NDPS Act and sends a clear signal that delay, affidavits by relatives, or moral undertakings cannot displace the statutory mandate when organized drug trafficking is prima facie involved.

Date of Decision: 7 November 2025