Bail Under the NDPS Act: Why Section 37 Twin Conditions Cannot Be Bypassed Even After Prolonged Custody

India's Narcotic Drugs and Psychotropic Substances Act, 1985 imposes one of the strictest bail regimes in the country's criminal law. Section 37 of the Act creates a specific bar on bail in cases involving commercial quantities of narcotics and certain other offences, and the Supreme Court has consistently held, across a series of 2025 and 2026 decisions, that neither prolonged incarceration nor inordinate delay in trial can override the twin conditions mandated by the section. Understanding these conditions is essential for defence counsel, prosecutors, and trial courts handling NDPS matters.

What Section 37 Requires

Section 37 of the NDPS Act provides that bail shall not be granted to an accused charged with specified offences unless the court is satisfied of two conditions: first, that there are reasonable grounds to believe the accused is not guilty of the alleged offence, and second, that the accused is not likely to commit any offence while on bail. These are cumulative conditions, not alternatives. Both must be independently satisfied on the materials before the court. The bar applies in addition to ordinary bail conditions under the Bharatiya Nagarik Suraksha Sanhita and must be specifically addressed in any bail order.

Commercial Quantity and Its Consequences

The NDPS Act classifies quantities into small, intermediate, and commercial. Commercial quantities, prescribed by notification under Section 2(vii-a) and the schedule, attract the highest punishment and the strictest bail embargo. For heroin, the commercial quantity threshold is 250 grams. For cannabis, it is 20 kilograms. For cocaine, it is 100 grams. When the quantity seized meets the commercial threshold, the Section 37 embargo is triggered automatically, and the court must record specific satisfaction on the twin conditions before any bail can be granted.

Long Custody Cannot Substitute for the Twin Conditions

The Supreme Court has repeatedly rejected the argument that extended pre-trial detention by itself justifies bail in NDPS commercial quantity cases. Courts have held that the gravity of the offence, the incriminating material gathered during investigation, and the risk of reoffending must be weighed against the period of custody, and that mere passage of time cannot tilt the balance when the Section 37 twin conditions remain unmet. In March 2026, the Supreme Court referred to a larger bench the separate but related question of whether an accused can claim default bail under the NDPS Act when the forensic science laboratory report establishing the quantity is not submitted along with the chargesheet within the prescribed period.

Practical Takeaways

Defence counsel in NDPS cases involving commercial quantities must address the Section 37 twin conditions as the primary ground for bail, and not rely solely on the duration of custody or delay in trial. Prosecutors must ensure that FSL reports are filed along with the chargesheet to avoid default bail exposure, a question now pending before a larger Supreme Court bench. Trial courts and High Courts must record specific findings on both twin conditions in any bail order; an order that grants bail without addressing these conditions is liable to be set aside. Courts have also clarified that the period of incarceration has no bearing on bail where the accused has criminal antecedents and the Section 37 embargo is attracted.