SC Tightens NDPS Bail: Trial Delay Can't Override Mandatory Section 37 Twin Tests

In a judgment with far-reaching implications for narcotics cases, the Supreme Court of India on November 13, 2025, delivered a stern directive reinforcing the stringent bail provisions under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The apex court held that prolonged custody or trial delays, by themselves, are insufficient grounds to grant bail to an accused in a commercial-quantity drug case.

The ruling, in Union of India vs. Vigin K. Varghese, explicitly states that bail cannot be granted unless the mandatory "twin conditions" laid down in Section 37(1)(b) of the Act are satisfied. This decision sets aside recent High Court bail orders and serves as a powerful alert to all lower courts to rigidly apply the two-fold statutory test before granting relief.

The bench, comprising Justices Aravind Kumar and N.V. Anjaria, clarified that while prolonged incarceration is a relevant factor, it cannot be used to bypass the specific legislative embargo created by Parliament to tackle the "menace" of drug trafficking. The judgment effectively resets the scales, prioritizing the strict application of the statute over general considerations of personal liberty in cases involving large-scale drug seizures.

The 'Statutory Threshold': High Court Orders Set Aside

The Supreme Court's definitive ruling came while hearing appeals filed by the Union of India against two orders from the Bombay High Court, dated January and March 2025. These orders had granted bail to Vigin K. Varghese, a director of a food import company, in two separates but connected cases.

The first case involved the seizure of 50.232 kilograms of cocaine concealed in a shipment of green apples imported from South Africa. The second, connected case involved a staggering seizure of 198.1 kilograms of methamphetamine and 9.035 kilograms of cocaine, allegedly part of the same trafficking network.

The High Court had granted bail on four primary "planks":

1. Prolonged incarceration of the accused (arrested in October 2022).

2. The perceived delay in the trial, which was unlikely to conclude in the near future.

3. A prima facie finding that there was no material to show the accused had "knowledge" of the contraband.

4. The apparent absence of criminal antecedents.

The Supreme Court found this reasoning to be "deficient" and a clear misapplication of the law. The bench meticulously dismantled the High Court's findings, noting that it had failed to properly engage with the statutory requirements of Section 37.

First, the apex court observed that the High Court's conclusion of "no knowledge" was reached "without discussion" of the prosecution's evidence. This included statements recorded under Section 67 of the NDPS Act, which implicated the accused, and material suggesting he was actively involved in managing the consignment's logistics.

Second, and more critically, the Supreme Court noted that the High Court’s finding of "no antecedents" was made despite the prosecuting agency's explicit assertion that the accused was involved in the other massive seizure of 198 kg of methamphetamine. The Supreme Court stated that this serious allegation "is neither noticed nor answered in the impugned orders."

By ignoring this material, the High Court had failed to conduct the rigorous analysis required to satisfy the twin conditions. The Supreme Court called this finding "not a casual observation" but the "statutory threshold" that must be met.

Deconstructing Section 37: The Inescapable Twin Conditions

At the heart of this judgment is the interpretation of Section 37 of the NDPS Act, one of the most stringent bail provisions in Indian law. This section creates a "specific embargo" on granting bail for offences involving commercial quantities.

It mandates that an accused person shall not be released on bail unless two conditions are met:

1. The court must be satisfied that there are "reasonable grounds for believing that he is not guilty of such offence."

2. The court must also be satisfied that "he is not likely to commit any offence while on bail."

These are known as the "twin conditions." The Supreme Court's Varghese judgment reiterates that these conditions are mandatory and not merely directory. The provision places a high burden of proof on the accused at the bail stage. The court must record a positive satisfaction of innocence and future good conduct, a significantly higher bar than in standard criminal cases under the Code of Criminal Procedure (CrPC).

The limitations under Section 37 are "in addition to" the regular conditions for bail under the CrPC, such as flight risk or tampering with evidence. This legislative intent, as affirmed by the court, is to treat drug offences involving commercial quantities as a "distinct statutory footing" due to their grave threat to society.

The 'Prolonged Custody' Dilemma: Reconciling Article 21

The judgment directly confronts a growing conflict in jurisprudence: the clash between the right to a speedy trial, guaranteed under Article 21 of the Constitution, and the harsh bail provisions of special statutes.

In recent years, several court judgments have granted bail in NDPS cases, reading down the rigours of Section 37 by invoking Article 21, especially where the accused has been incarcerated for many years without trial. The Varghese ruling arrests this trend.

The Supreme Court clarified the legal position: while a long delay in trial is a "grave concern" and can be a factor for consideration, it does not create an automatic right to bail that overrides the legislative command of Section 37.

The court's reasoning establishes a clear sequence for judicial analysis:

1. A court must first and foremost apply the twin tests of Section 37.

2. It must examine the prosecution's material to see if there are "reasonable grounds" to believe the accused is not guilty and not likely to re-offend.

3. Only if these stringent conditions are met can the court proceed to grant bail.

4. A court cannot bypass this primary test by citing trial delay as the sole or principal justification for granting relief.

In essence, the court held that trial delays cannot be used as a "back door" to nullify the specific embargo Parliament has placed on bail in such serious offences. The "remedy" for trial delay, the court implied, lies in expediting the trial, not in diluting the statutory framework for bail.

A Mandate for Lower Courts: The Path Forward

By setting aside the High Court's orders and remitting the matter for "fresh consideration" with a direction to pass a "reasoned order" within four weeks, the Supreme Court has sent an unambiguous message to the entire judiciary.

This judgment is a clear mandate for all High Courts and Special NDPS Courts to adhere strictly to the letter of the law. Courts are now obligated to produce detailed, reasoned orders that explicitly demonstrate their engagement with the Section 37 conditions.

A judge granting bail in a commercial quantity case must show how they concluded that the accused is prima facie not guilty, especially in the face_ of evidence presented by the prosecution. A failure to do so, as seen in the Varghese case, will now be considered a legal deficiency warranting reversal.

This decision significantly strengthens the hand of prosecuting agencies and reinforces the harsh, zero-tolerance policy intended by the NDPS Act. For the legal community, it signals that the bar for bail in commercial drug cases remains exceptionally high, and arguments based purely on procedural delays or general principles of liberty have been definitively placed second to the strict, mandatory conditions of the statute.