The Narcotic Drugs and Psychotropic Substances Act came in force in 1985 with an object to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The courts have always taken rigid stand when it comes to upholding the law relating to narcotic drugs.
The Apex Court in “Union of India Vs. Ram Samujh and Ors. 1999 (9) SCC 429”, observed that, “It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely.”
Section 37 of The NDPS Act is laid down as under:
Offences to be cognizable and non-bailable—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
—a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—
- the Public Prosecutor has been given an opportunity to oppose the application for such release, and
- II. where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.
Key Judicial Interpretation by Courts
In the case of “State of Kerala and others versus Rajesh and others AIR 2020 SC 721,” the Circle Inspector of Excise apprehended an individual who was in possession of hashish oil. The accused sought bail from the trial court, which was denied under Section 37 of the NDPS Act due to sufficient prima facie evidence of guilt. The High Court overturned this decision without considering Section 37 and granted bail, but the Apex Court reversed that ruling, stating that “reasonable ground” entails more than just prima facie evidence.
The Apex Court remarked that the High Court had adopted an excessively lenient perspective and disregarded Section 37 of the NDPS Act. The Apex Court underscored the mandatory nature of the twin conditions laid out in Section 37, clarifying that bail cannot be awarded merely based on technicalities or procedural errors, necessitating a prima facie evaluation of innocence.
In the case of “Tofan Singh versus State of Tamil Nadu AIR 2020 SC 5592,” it was determined by the Supreme Court that confessions made by an accused or co-accused in custody to police are not admissible according to Section-26 of the Indian Evidence Act. The court decided that statements made to the investigating officer are inadmissible unless they are documented under Section 164 of the CRPC. This creates challenges for the prosecution when attempting to exclusively rely on the confessions of the accused to oppose bail.
In the case of “Union of India versus Pradeep Shukla AIR 2021 SC 1509”, the Supreme Court clarified that simply recording the arguments of the parties does not constitute an indication of a judicial or judicious application of thought. Section 37 of the NDPS Act outlines the legal standards that must be applied in assessing whether a valid case for bail exists or not.
In the case of “State (NCT of Delhi) Narcotics Control Bureau versus Lokesh Chadha 2021 5 SCC 724,” the Supreme court ruled that an individual accused of offences under Sections 19, 24, or 27A of the NDPS Act as well as those involving commercial quantities, cannot be granted bail if the public prosecutor opposes it, unless the court is convinced there are reasonable grounds to believe the accused is not guilty and will not commit further offences while released on bail.
In the ruling of “Union of India through NCB Lucknow versus Mohammad Nawaz Khan 2021 10 SCC 100,”the Apex Court, annulled the bail of the accused and emphasized that the High Court ought to have given due weight to the seriousness and gravity ot the offence and must have determine the reasonable grounds to believe that the accused would not engage in any criminal activity if granted bail.
A three-judge bench in the case “Narcotics Control Bureau versus Mohit Agarwal (2022) 18 SCC 374”determined that the duration of custody of the accused or the mere fact that the charge-sheet has been submitted and the trial is underway are not significant factors to be seen as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act. The Apex Court reiterated that the stringent criteria of Section 37 indicate that a weak prosecution case does not suffice for bail to be granted. The accused is required to establish his innocence at a prima facie level.
In the case of “Rabi Prakash v. State of Orissa (2023) SLP (Crl.) No. 4169/2023”, the Supreme Court noted that extended periods of detention for the accused could warrant the granting of bail, even considering the stringent restrictions imposed by Section 37 of the NDPS Act. It stated that excessive imprisonment without a timely trial violates the fundamental right to life and personal liberty as enshrined in Article 21 of the Constitution, and in such situations, conditional liberty should take precedence.
In “Shivraj Gorakh v. State of Maharashtra LAWS (BOM)-2023-9-168 ”, the Bombay High Court approved bail for a 22-year-old individual charged with possessing a commercial quantity of narcotics, citing procedural irregularities in the search and seizure processes outlined in Section 42 of the NDPS Act. The accused had no previous convictions and had been in custody for over two years while awaiting trial. Highlighting the fundamental right to personal liberty under Article 21, the Court remarked that extended detention may justify the granting of bail despite the rigorous conditions set by Section 37 of the NDPS.
In “Vipin Mittal v. National Investigation Authority 2023 SCC OnLine Del 3270”, the Delhi High Court allowed regular bail for the petitioner accused under various sections of the NDPS Act regarding the smuggling of heroin concealed within licorice roots (Mulethi). The Court recognized the petitioner’s clean criminal history, respectable position in the industry, and absence of connections to other co-accused, ultimately concluding that bail was warranted.
In “Mohd Muslim @ Hussain v. State (NCT of Delhi) 2023 SCC ONLINE SC 352”, the Division Bench determined that an unreasonable delay in the trial proceedings could allow for the grant of bail to a defendant under the NDPS Act, regardless of the stringent bail provisions specified in Section 37.
In the case of “Deva Ram v State of Rajasthan, 2023 SCC Online SC 1267”, the Supreme Court observed that the trial was unlikely to conclude in the near future, with the accused having spent over six years as an undertrial prisoner under Sections 18 and 25 of the NDPS Act. Therefore, bail was granted to the accused, subject to certain bail conditions.
In “Union of India v. Ajay Kumar Singh, 2023 SCC Online SC 346”, the case involved 1005 kgs of ganja, with the accused identified as the kingpin and organizer of the ganja trade. The Supreme Court emphasized that bail should only be granted when there is a clear indication of the accused’s innocence. The High Court had erred in granting bail to the respondent.
In the case of “State of Meghalaya Vs. Lalrintluanga Sailo & Anr. [Special Leave to Appeal (Crl.) No(s). 16021/2023]”, the Hon’ble Apex Court stated that bail cannot be granted to a person with HIV solely based on their illness unless the twin conditions under Section 37 of the NDPS Act are met. Furthermore, it was ruled that a liberal approach disregarding the provisions of Section 37 NDPS Act while considering bail applications for accused persons is not permissible.
In “Yugraj Singh v. UT of J&K and another, bail application no. 252/2024”, issued on 25 March 2025,” the J&K Haryana High Court emphasized several points: firstly, custodial statements or confessions made to police under sections 26 and 27 of the Indian Evidence Act are inadmissible unless they contribute to the tangible recovery of contraband; secondly, statements by co-accused in police custody cannot be used to deny bail; thirdly, Section 37 does not entirely prohibit bail in cases involving commercial quantities, and the courts must find prima facie evidence of the accused’s innocence and non-recidivism; finally, materials like CDRs lacking corroborative evidence may not be sufficient to justify denying bail in cases of financing or harboring offenses.
In the case of “Ankur Chaudhary v. State of Madhya Pradesh,” 2024, Live Law SC-416, the Apex court observed that a delay in concluding the trial, which leads to extended imprisonment, undermines the fundamental rights enshrined in Article 21 of the Constitution of India. Consequently, conditional liberty may be considered, overriding the statutory restriction imposed by section 37(1)(b) of the NDPS Act.
In “State represented by the Inspector of Village v. B. Ramu, 2024, INSC-114, SLPCRL No. 8137 of 2022”, resolved on February 12, 2024, as well as in “Union of India v. Singh, 2023,” SCC Online SC-376, the Supreme Court emphasized that when considering a bail application in cases involving the recovery of commercial quantities of narcotic drugs or psychotropic substances, courts should exercise caution in granting bail to individuals with prior criminal records and must document their satisfaction in alignment with the requirements stated in section 37 of the Act.
In “Vimal Rajput v. State of UP, Neutral Citation No. 2024 AHC LKO 42533,” the Allahabad court decided to grant bail to a person accused of possessing 7 kg of charas by referencing procedural irregularities in the substance and seizure processes, as well as the lack of any prior criminal history. Taking into account the individual’s prolonged detention for the past six months and the absence of any apparent risk of re-offending, the Allahabad High Court granted bail.
In “Vinod Nagar v. Narcotics Control Bureau (Neutral Citation: 2024: DHC:1244)” – (High Court of Delhi) (19 Feb 2024),” the Delhi High Court ruled that Section 37 of the NDPS cannot be applied where the evidence against the accused appears implausible and insufficient for the purpose of securing a conviction. The Court permitted the bail application due to the accused’s clean antecedents and reasonable grounds indicating he was unlikely to re-offend.
In “Shuaib A.S. v. State of Kerala, 2025, SPC Online 618,” the Kerala High court noted that if the trial could not progress due to significant delays/ lethargic attitude by the prosecution within the time frame, and the applicant in no way has played anything which would stand in the way of trial even on remote possibility or mere impossibility. Then, bail request from the accused based on this reason should be considered, notwithstanding the restrictions under Section 37(1)(b) of the NDPS Act, in alignment with Article 21 of the Constitution of India.
In “CRLA No. 796 of 2007 titled as Avicharan @ Kuttiachan v. State of Kerala (2025: KER: 58637),” decided on 6 August 2025, the Kerala High Court acquitted the accused in an NDPS case due to insufficient evidence of possession and incorrect identification by police authorities.
Conclusion
The jurisprudence surrounding bail under the Act is continually developing. Section 37 acts as a deterrent for drug-related offences as it instills a sense of fear among individuals that committing an offence under the Act will result in denial of bail. Conversely, this provision can sometimes becomes severe as innocent individuals may end up incarcerated. Consequently, the judiciary must adopt a cautious approach to ensure fairness.
While courts are careful in granting bail for cases involving commercial quantities, they must take into account procedural errors, trial delays, and constitutional protections. It is crucial for defense attorneys to focus not only on the facts, but also on procedural shortcomings and recent case laws that may support bail. Although obtaining bail under the Act remains challenging, recent judicial developments have sought to strike a balance between strict enforcement and the protection of constitutional rights.
Courts are beginning to recognize procedural mistakes, delays, and unique situations as legitimate grounds for granting bail, even in the context of this stringent legislation. Though strict legal measures are necessary to combat the drug problem in society, the law should not encroach upon individuals’ fundamental rights. Thus, there is a necessity for judicial rulings that represent a positive advancement in this area.
Author: Heena Mahajan, Haryana
Link to similar articles: https://jpassociates.co.in/blog-morality-clauses/
