The Supreme Court has asserted that in NDPS cases involving commercial quantity, compliance with Section 37 is mandatory, and a bail order which does not record satisfaction on the twin conditions under Section 37(1)(b)(ii) is legally unsustainable. A court cannot grant bail by adopting a liberal approach based only on considerations such as period of custody or likely delay in trial without first addressing whether there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail.
The Court further held that where the accused has antecedents of similar NDPS offences, the court may legitimately conclude that the second limb of Section 37 is not satisfied. It also indicates that custody of 1 year and 7 months, in a prosecution carrying punishment up to twenty years, would not by itself justify bail on Article 21 grounds in the circumstances of this case. Accordingly, the Supreme Court set aside the Punjab and Haryana High Court’s order granting regular bail to an accused in an NDPS case involving recovery of 1.465 kg of heroin.
A Two-Judge Bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh reiterated that an appeal against grant of bail and an application for cancellation of bail stand on a different footing, and framed the principal issue as whether the High Court’s order granting bail was consistent with the settled principles governing Section 37 of the NDPS Act. The Bench reproduced Section 37 and emphasized that in cases involving commercial quantity, the court must be satisfied, where the Public Prosecutor opposes bail, that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
The Bench observed that a liberal approach ignoring the mandate of Section 37 is impermissible, and recording satisfaction on the twin conditions under Section 37 is sine qua non for grant of bail in commercial quantity cases under the NDPS Act. It further noted that “reasonable grounds” mean something more than prima facie grounds and require substantial and probable causes for believing that the accused is not guilty.
On examining the impugned order, the Bench found that the High Court had not considered the twin conditions under Section 37 at all, even though it was undisputed that the case involved commercial quantity. The Bench therefore held that the High Court’s order could not be sustained in law. On merits, it further held that no case for bail was made out because the respondent had antecedents involving similar NDPS offences, and therefore it could not be said that he was not likely to commit an offence while on bail.
The Bench also rejected the argument based on long incarceration in the facts of the case, observing that the respondent had undergone only 1 year and 7 months of custody, whereas if convicted he could face a sentence of up to twenty years. It acknowledged that the application of Article 21 in prolonged incarceration cases under special statutes is not uniform.
Briefly, the appeal arose from the High Court of Punjab and Haryana’s order granting regular bail to Balraj Singh in FIR registered under Sections 21(c), 29, 61 and 85 of the NDPS Act. The prosecution case was that on Jan 10, 2024 the police intercepted a Mahindra XUV 300 at a checkpoint on Canal Road, Village Veeram, and recovered 1.465 kg of heroin from the possession of the two occupants after purported compliance with Section 50 of the NDPS Act. The FSL report confirmed the recovered substance to be diacetylmorphine/heroin.
As against the respondent, the case was not based on direct recovery but on the disclosure made by the co-accused on Jan 11, 2024 that he had instructed them, while lodged in Central Jail, Goindwal Sahib, to collect the heroin from the canal area and keep it for further supply on his directions. During investigation, it was further found that he was allegedly operating a drug trafficking network from inside jail using illegal mobile phones, and he was accordingly arrayed as an accused vide DDR dated Jan 11, 2024.
The respondent’s application for regular bail had first been rejected by the Special Court, Tarn Taran on July 03, 2025, but the High Court later granted bail, observing that criminal antecedents alone could not justify refusal of bail and relying on the period of custody and the likely delay in conclusion of trial. In the same FIR, bail granted to the other two accused had already been set aside by this Court in separate appeals. Pursuant to the interim order dated April 07, 2026, the respondent had surrendered.
The State contended that the High Court had ignored the statutory bar under Section 37 of the NDPS Act, despite the case involving commercial quantity, and had also failed to properly account for the respondent’s three antecedents of similar nature. The respondent, on the other hand, argued that he was falsely implicated, was not named in the FIR, no recovery was effected from him, he had undergone incarceration of 1 year and 7 months, investigation was complete, and only 2 of 24 prosecution witnesses had been examined.
Appearances:
Shadan Farasat, Sr. Adv., Karan Sharma, AOR, For Appellants
M/S Mps Legal, AOR, Prabhat Chaurasia, Adv., Jashandeep Sandhu, Adv., Jasdeep Singh Dhillon, Adv., Anirudh Jamwal, Adv., Aditya Bajaj, Adv., Kenisha Savla, Adv., For Respondents
Judgement Copy- State of Punjab vs Balraj Singh