Introduction In ordinary criminal law, the principle is “Bail is the rule, Jail is the exception.” However, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), this rule is effectively reversed for serious offences.
The legislature, intending to curb the drug menace, inserted Section 37, which places a heavy burden on the accused to prove their innocence before the trial even begins.
When Does Section 37 Apply? It is a common misconception that Section 37 applies to all NDPS cases. It applies strictly to:
- Offences involving Commercial Quantity (refer to the [Quantity Table here]).
- Offences under Section 19 (Embezzlement of opium by cultivator).
- Offences under Section 24 (External dealings).
- Offences under Section 27A (Financing illicit traffic).
The “Twin Conditions” for Bail If Section 37 applies, the court cannot grant bail unless two rigorous conditions are met:
- Opportunity to Oppose: The Public Prosecutor must be given an opportunity to oppose the bail application.
- Satisfaction of the Court: The Court must be satisfied that there are “reasonable grounds” for believing that:
- The accused is not guilty of the offence; AND
- The accused is not likely to commit any offence while on bail.
“Reasonable Grounds”: A High Bar The Supreme Court has interpreted “reasonable grounds” to mean something more than a prima facie case. The court must look at the available evidence (FIR, statements, recovery memos) and form a tentative opinion that the accused might not be convicted.
This is why procedural lapses—such as failure to comply with Section 50 (search of person) or Section 42 (warrant/authorization)—are so critical at the bail stage. If the recovery itself is vitiated by procedural errors, the court may find “reasonable grounds” to believe the accused is not guilty.
The “Delay” Exception: A Ray of Hope While Section 37 is stringent, it does not override the Constitutional Right to a Speedy Trial (Article 21).
In the landmark judgment of Union of India v. K.A. Najeeb (2021), the Supreme Court held that if an accused has spent a substantial period in custody (e.g., 4-5 years) and the trial is unlikely to conclude soon, the rigors of Section 37 can be relaxed, and bail may be granted.
Conclusion Securing bail in a commercial quantity case requires a dual strategy:
- Merit-based: Attacking the investigation’s procedural flaws to satisfy the “Twin Conditions.”
- Constitutional: Arguing on the basis of long incarceration and delay in trial.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Each case has unique facts that determine bail outcomes.