Prolonged Custody and Delay in Trial Are No Substitute for Statutory Satisfaction Under Section 37: Supreme Court Warns Against Casual Bail in NDPS Cases

“Long Incarceration Cannot Dilute the Rigour of Section 37 of NDPS Act”:  In a strongly worded ruling on 13 November 2025, the Supreme Court of India reversed two bail orders granted by the Bombay High Court in favour of Vigin K. Varghese, a businessman accused of importing commercial quantities of cocaine and methamphetamine camouflaged in fruit consignments. While noting that prolonged custody and trial delays were real, the Court reminded that in narcotics cases, Section 37 of the NDPS Act sets a mandatory statutory threshold, and liberty alone cannot override a statutory bar.

Justice Aravind Kumar and Justice N.V. Anjaria, delivering judgment in Union of India v. Vigin K. Varghese, concluded that the High Court failed to apply the mandatory twin conditions under Section 37(1)(b)(i) and (ii), which require courts to be satisfied that the accused is not guilty and not likely to reoffend before granting bail in commercial drug cases.

“It is not a matter of discretion but a matter of statutory obligation,” the Supreme Court observed while quashing both bail orders and remanding the case for fresh consideration.

“You Cannot Ignore the 50 Kilos of Cocaine and Say He Didn’t Know”: Supreme Court Criticises High Court’s Non-Engagement with Alleged Conscious Possession

The case stems from a seizure on 6 and 7 October 2022, where officials of the Directorate of Revenue Intelligence (DRI) recovered 50.232 kilograms of cocaine from a shipping container falsely declared to contain South African pears. The consignment was imported under the name of M/s Yummito International Foods India Pvt. Ltd., where the respondent Vigin Varghese served as Director.

The High Court granted bail primarily on the grounds that there was “no prima facie evidence” of the accused’s knowledge about the presence of cocaine in the consignment, and cited lack of antecedents, prolonged custody, and anticipated delay in trial.

The Supreme Court, however, held this reasoning as legally unsustainable.

“The High Court’s conclusion that there is no material to show that the applicant had knowledge of the cocaine… was arrived at without discussing the respondent’s own statements, his role in placing the orders, his presence during clearance, and his direct involvement in coordinating the import,” the Court noted.

The DRI had placed on record the respondent’s statements under Section 67 of the NDPS Act, call data records, and evidence of logistics coordination, all of which, the Court noted, could trigger the presumption of culpable mental state under Section 35 of the Act.

“The omission to engage with such prima facie material renders the bail orders infirm,” the Court added.

“Earlier Seizure of 198 Kilos of Methamphetamine Was Entirely Ignored”: Supreme Court Finds High Court Order Shallow in Statutory Analysis

The prosecution also relied on an earlier seizure on 2 October 2022, where 198.1 kg of methamphetamine and 9.035 kg of cocaine were allegedly recovered in a linked operation involving the same smuggling network. The Supreme Court expressed concern that the High Court did not even mention this antecedent case, despite it being a critical fact in assessing the statutory satisfaction required under Section 37.

“The material before this Court includes the Union’s assertion that the respondent had already been apprehended in connection with an earlier seizure… That assertion is neither noticed nor answered in the impugned orders,” the bench noted, finding the High Court’s failure to engage with this material as a serious lapse.

“Section 37 is Not a Rubber Stamp Provision”: Bail in NDPS Cases Requires a Specific Finding of Innocence and No Risk of Reoffending

Referring to the statutory bar under Section 37 NDPS Act, the Supreme Court reiterated that the grant of bail in cases involving commercial quantity of narcotics requires the court to record a specific finding that there exist reasonable grounds to believe that the accused:

1. Is not guilty of the offence, and
2. Is not likely to commit any offence while on bail.

In this case, the Court found that the High Court had recorded these statutory satisfactions casually, based on general observations of delay and lack of criminal history, without engaging with the prosecution’s case.

“The conclusion that there exist reasonable grounds to believe the accused is not guilty… was returned without addressing the prosecution’s assertions of operative control and antecedent involvement,” the judgment noted.

In doing so, the Court emphasized that Section 37 cannot be diluted simply by invoking Article 21, the constitutional right to life and liberty.

“Delay and long custody, while relevant, cannot override the mandatory twin conditions… Liberty must be balanced with statutory mandates,” the Court said.

“Fresh Consideration Ordered, Interim Bail to Continue for Now”: Supreme Court Refuses to Rule on Merits, Sends Matter Back to High Court

While setting aside the bail orders dated 22.01.2025 and 12.03.2025, the Supreme Court refrained from deciding the bail plea itself. Instead, it remitted the matter to the High Court with a clear direction:

“The High Court shall, after affording an opportunity of hearing to both sides and upon adverting to the statutory requirements of Section 37 and the relevant material on record, pass a reasoned order… within four weeks.”

The respondent was allowed to continue on interim bail, subject to strict adherence to existing bail conditions. Any violation, including tampering with evidence or contacting witnesses, will permit the DRI to move for cancellation.

The Supreme Court made it clear that it had not expressed any opinion on guilt or innocence but expected the High Court to discharge its statutory obligation seriously and rigorously.

“NDPS Bail Cannot Be Treated Like Ordinary Criminal Cases”: Supreme Court’s Message to Courts Granting Bail in Drug Trafficking Cases

This judgment is a sharp reminder to all constitutional courts that bail in NDPS commercial quantity cases is not governed solely by CrPC or equity, but by the express statutory bar of Section 37.

The Supreme Court reiterated:

“Offences involving commercial quantity of narcotic drugs stand on a distinct statutory footing… Bail must rest on careful appraisal of material available, in addition to ordinary tests under the CrPC.”

By quashing the High Court’s orders and sending the matter back for comprehensive judicial reconsideration, the Court restored the primacy of statutory rigour over sympathy, especially in matters concerning serious drug offences with international ramifications.

Date of Decision: 13 November 2025