Bail in NDPS Cases in India: Key Rulings

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), is among the most stringent legislations in India. Its provisions especially those related to bail are interpreted with a high degree of strictness, making the legal framework around it notably complex. This article presents a comprehensive legal analysis of how courts have interpreted and applied bail provisions under the NDPS Act, drawing on key judgments from various Indian courts.

Understanding the Statutory Framework of Bail under NDPS Act

Under the NDPS Act, bail is governed primarily by Section 37, which imposes strict conditions for granting bail in cases involving commercial quantity of narcotic drugs or psychotropic substances.

Section 37 of the NDPS Act: The Statutory Embargo

"No person accused of an offence punishable for offences under Sections 19, 24, or 27A and also for offences involving commercial quantity shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail."

This provision creates a twin test:

1. The Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty.

2. The accused is not likely to commit any offence while on bail.

   
   

The Stringent Bail Provision under Section 37 of the NDPS Act

Unlike regular criminal offences where bail is a rule and jail is an exception, NDPS cases flip this principle—especially when commercial quantity is involved. Section 37 requires that before granting bail:

1. The Public Prosecutor must be heard and given a chance to oppose.

2. The court must be satisfied that the accused is not guilty.

3. The court must believe that the accused is unlikely to commit an offence while out on bail.

This twin-condition test sets a high bar and must be strictly met in every bail hearing concerning commercial quantity drugs like 1 kg of cocaine or 2 kg of heroin.

Key Judicial Interpretations of Bail in NDPS Cases

1. Union of India v. Thamisharasi (1995) 4 SCC 190

In this early and influential judgment, the Supreme Court emphasized that bail under Section 37 is not a matter of right. The Court held that in cases involving commercial quantity, the rigours of Section 37 override general provisions of the CrPC relating to bail.

The ruling reiterated that the legislative intent was to curb the menace of drug trafficking and, therefore, a stricter approach to bail was justified.

2. State of Kerala v. Rajesh, (2020) 12 SCC 122

This decision reaffirmed the mandatory nature of Section 37. The Supreme Court clarified that grant of bail in NDPS cases requires strict compliance with the statutory conditions and that liberal interpretations would defeat the purpose of the Act.

“The satisfaction of the court regarding the twin conditions must be based on material available on record.”

This judgment is now widely cited as binding authority in bail applications involving commercial quantity of narcotics.

3. Mohan Lal v. State of Punjab, (2018) 17 SCC 627

Although not directly on bail, this judgment had implications for investigative procedure under NDPS, which in turn affects the bail stage.

The Court ruled that the officer who conducts the seizure should not be the same as the one who investigates the case. Violation of this principle could raise questions of fairness and impact the legitimacy of the prosecution case — a factor often cited in bail hearings to claim that the accused is not guilty.

4. Toofan Singh v. State of Tamil Nadu (2020) 9 SCC 1

In a major blow to prosecution strategy, the Court ruled that statements made to investigating officers under NDPS Act are not admissible, unless recorded under Section 164 CrPC. This makes it difficult for prosecution to rely solely on accused’s confession to deny bail.

Important Considerations in Bail Proceedings under NDPS

Quantity of Substance Recovered

The classification into small, intermediate, and commercial quantity plays a pivotal role in the bail decision. Only cases involving commercial quantity attract the rigours of Section 37.

For example:

• Commercial Quantity for Heroin: 250 grams or more

• Small Quantity: 5 grams or less

In cases involving small quantity, courts have applied regular bail principles under Section 439 of CrPC, which are relatively lenient.

Delay in Filing Chargesheet

Courts have repeatedly held that undue delay in investigation or filing of chargesheet may justify grant of bail even under NDPS. In Supreme Court Legal Aid Committee v. Union of India (1994) 6 SCC 731, the Court directed that if the trial does not commence within a reasonable period, bail may be granted.

This position was further echoed in Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67, where the Court stressed on Article 21 and right to speedy trial, which can override statutory constraints in some instances.

Role of Procedural Safeguards: Section 42 and Section 50

Any violation of procedural safeguards under Section 42 (Search and Seizure) and Section 50 (Search of Person) can have a substantive impact on the case, often strengthening the bail plea.

State of Punjab v. Baldev Singh (1999) 6 SCC 172

This Constitution Bench decision laid down the importance of compliance with Section 50, holding that failure to inform the accused of his right to be searched before a magistrate or gazetted officer invalidates the recovery. Such procedural lapses can be raised to challenge the legitimacy of the case during bail hearings.

Emerging Judicial Trends in Bail under NDPS

Shift Towards Rebalancing Stringency and Fairness

While earlier jurisprudence emphasized strict compliance with Section 37, more recent judgments have shown greater concern for personal liberty and misuse of provisions.

Toofan Singh v. State of Tamil Nadu (2020) 9 SCC 1

In this landmark judgment, the Supreme Court held that confessional statements made to police officers under NDPS Act are not admissible as evidence, as they are not recorded under Section 164 CrPC. This weakened the prosecution’s case in several instances, allowing courts more leeway to grant bail.

Re: Inhuman Conditions in Prisons (2021)

The Supreme Court, in this suo motu case, emphasized the need to decongest prisons during the pandemic and observed that in cases involving intermediate quantity, courts may adopt a more liberal approach in bail.

Conditions Imposed Upon Grant of Bail

Even when bail is granted under NDPS, courts impose stringent conditions, such as:

• Surrender of passport

• Regular reporting to police

• No contact with co-accused or witnesses

• Surety bonds of high value

These measures aim to ensure that the accused does not flee or tamper with evidence.

NDPS Bail and Juveniles or Women

The Courts have also recognized the need for differential treatment for vulnerable groups, including juveniles, pregnant women, or women with children.

In Rhea Chakraborty v. Union of India, Bombay High Court held that strict rigours of Section 37 may not be fully applicable to women accused, especially if no recovery is made from them or there is no direct role established.

Procedural Deficiencies Can Aid Bail

In several cases, courts have noted that violations of procedural safeguards under the NDPS Act—such as non-compliance with Section 50 (right to be searched before a gazetted officer) or Section 42 (reporting of search and seizure to superior officers)—can be sufficient grounds for granting bail, particularly when the prosecution's evidence becomes shaky.

Delay in Trial Can Justify Bail

Despite the strict framework, courts have shown flexibility where trials are unduly delayed. The Supreme Court has held that Article 21 of the Constitution, which guarantees the right to life and liberty, must prevail over procedural hurdles if the trial takes too long.

For instance, in Supreme Court Legal Aid Committee v. Union of India, the court directed release on bail of undertrial prisoners who were languishing in jail for years without charge sheets.

Conclusion

The bail jurisprudence under the NDPS Act continues to evolve. While the courts remain cautious in granting bail for offences involving commercial quantity, they are also increasingly sensitive to procedural lapses, delay in trial, and constitutional safeguards. It is imperative for defence lawyers to rely not only on facts but also on procedural infirmities and recent precedents that favour bail. While bail under the NDPS Act remains difficult, recent judicial trends have introduced a balance between strict enforcement and constitutional rights. Procedural errors, delays, and special circumstances are increasingly being acknowledged by courts as valid grounds for granting bail, even under this stringent law.