ABSTRACT

This article explains the law of bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 in clear and accessible terms while critically examining how it operates in practice. It outlines the basic idea of bail as a mechanism that allows an accused person to remain at liberty during investigation and trial and contrasts this with the exceptionally strict approach adopted under Section 37 of the NDPS Act, particularly in cases involving commercial quantities of narcotic and psychotropic substances. The article reasons that the legislature has intentionally made bail difficult in such cases to prevent repeated offences and protect societal interests; however, it argues that a rigid application of these restrictions often results in prolonged custody even before guilt is established. The author therefore contends that courts must balance the object of the law with the facts of each case, so that bail continues to function as a safeguard against unnecessary pre-trial detention rather than becoming an illusory remedy.

The Meaning Of The Word ‘Bail’

The term ‘bail’ is derived from the old French verb ‘baillier,’ which means ‘to provide or convey’. [i]Bail is a basic legal arrangement that allows an accused person to remain free while a criminal case is being investigated or tried, instead of being kept in jail throughout the process. In simple terms, it is a promise made to the court that the accused will appear whenever required and will not evade the legal process. For example, if a person is arrested for a non-violent offence such as a financial dispute or a minor altercation, the court may grant bail on the condition that the person deposits a sum of money or furnishes a bond and regularly appears before the court. This ensures that the person’s liberty is not unnecessarily taken away before guilt is proved. [ii]As noted in Law Lexicon, bail is the “security for the appearance of the accused person on giving which he is released pending trial or investigation,” and [iii]Black’s Law Dictionary similarly describes it as the release from legal custody based on an undertaking to submit to the court’s authority. Thus, bail serves a practical purpose it keeps the justice process moving while protecting individuals from needless pre-trial imprisonment.

Bail Under Narcotic Drugs And Psychotropic Substances Act (NDPS)

The NDPS Act is one of the strictest criminal laws in the country. [iv]Section 37 of the NDPS Act restricts the grant of bail in matters which involve commercial quantity of narcotic drugs or psychotropic substances. A bail application can be allowed only if there are reasonable grounds to believe that the accused is not guilty of an offence under the NDPS Act and that the person released on bail would not commit any offense. Both conditions must be satisfied for bail to be granted in serious NDPS offenses. Honourable Justice Dr Dhananjaya Y Chandrachud passed the instant judgment in the case of the [v]State (GNCT of Delhi) Narcotics Control Bureau V Lokesh Chadha to uphold this verdict.

Commercial quantity refers to a large quantity of a narcotic/psychotropic substance above the threshold notified by the government for such substance. Section 37 of the NDPS Act makes bail conditional on what is often called the [vi]“twin test”[vii], first, the Public Prosecutor must be given an opportunity to oppose the application and second when opposed the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while out on bail.

This was seen in a significant yet recent ruling by the [viii]Punjab and Haryana High Court where they held that prolonged and inordinate custody of an undertrial, not attributable to any delay caused by the accused justifies the grant of regular bail even in cases involving commercial quantity under the NDPS Act. Deciding a bail application under [ix]Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Court emphasised that the right to life and personal liberty including but not limited to the right to a speedy trial which cannot be defeated by undue delays in the judicial process. The Court clarified that Section 37 of the NDPS Act does not operate as an absolute bar where continued incarceration becomes excessive and punitive and stressed that courts must balance the legislative objective of curbing drug offences with the constitutional mandate of ensuring a fair and expeditious trial.

A bail application in an NDPS matter must specifically address the statutory rigours of the Act and demonstrate why continued custody is unwarranted. It should clearly set out:

• The quantity of the contraband allegedly recovered: categorised as small, intermediate or commercial since this classification determines the severity of punishment and the applicability of the stringent conditions under Section 37.
• The nature of the accused’s involvement: whether direct possession, indirect connection, minimal or peripheral role or mere presence without conscious possession.
• Procedural or statutory violations: especially non-compliance with mandatory safeguards under [x]Sections 42 (search and seizure), [xi]50 (personal search), and [xii]57 (Report of arrest and seizure), which courts treat as significant at the bail stage.
• Medical, humanitarian or family grounds: such as serious illness, prolonged incarceration or exceptional personal circumstances.
• Absence of criminal antecedents and low risk of recidivism: indicating that the accused is unlikely to commit a similar offence if released on bail.

In cases involving commercial quantity the accused must additionally satisfy the court that there are reasonable grounds to believe that he or she is not guilty of the offence and is unlikely to commit any offence while on bail, as mandated by Section 37 of the Act.

Why Is Bail Denied in NDPS Cases? [xiii]

Bail is frequently denied in NDPS prosecutions due to the strict legislative intent underlying the Act and the serious societal impact of narcotics offences. Common reasons include:

• Recovery of commercial quantity of contraband: which triggers the restrictive conditions under Section 37.
• Judicial apprehension of repeat offending: particularly where the accused is perceived as part of an organised drug network.
• A central or active role of the accused: in the trafficking, transportation or supply chain.
• Pending investigation: coupled with concerns regarding tampering with evidence or influencing witnesses.
• Strict compliance with statutory procedures by the investigating agency: which strengthens the prosecution’s prima facie case and reduces the scope for bail.

Stringent Bail Conditions under Section 37 of the NDPS Act

Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 imposes exceptionally stringent conditions on the grant of bail particularly in cases involving [xiv]commercial quantities of narcotic drugs or psychotropic substances. The provision represents a conscious legislative departure from the general principles of bail under the Code of Criminal Procedure, 1973 prioritising societal interest and drug-control policy over individual liberty.

1. Covered Offences

Section 37 applies to serious offences relating to the manufacture, production, possession, transportation, import, export, sale, purchase and trafficking of narcotic drugs and psychotropic substances. The Act makes a clear statutory distinction between small quantity, intermediate quantity, and commercial quantity with offences involving commercial quantity attracting the harshest penal consequences and the most restrictive bail regime.

2. Statutory Embargo on Bail in Commercial Quantity Cases

In cases involving commercial quantity bail cannot be granted unless the court is satisfied that both conditions prescribed under Section 37(1)(b) are cumulatively fulfilled:

• Reasonable grounds exist to believe that the accused is not guilty of the alleged offence; and
• The accused is not likely to commit any offence while on bail.

Additionally, the Public Prosecutor must be given an opportunity to oppose the bail application. These conditions create a statutory presumption against bail, substantially raising the threshold for release.

Importantly, Section 37 effectively reverses the burden of proof at the bail stage requiring the accused to demonstrate prima facie innocence and low risk of reoffending an onerous requirement that makes bail under the NDPS Act exceptionally difficult to secure.

3. Exceptions and Judicial Nuance

• Small Quantity Cases: Where the offence involves a small quantity of contraband the rigour of Section 37 does not apply with the same intensity. Bail is generally granted, subject to the court’s assessment of factors such as criminal antecedent’s conduct of the accused and potential threat to society.
• Judicial Interpretation: In [xv]State of Kerala v. Rajesh (2020), the Supreme Court categorically held that bail under Section 37 cannot be granted unless both statutory conditions are satisfied. In that case bail was refused as the recovery involved a commercial quantity and the accused failed to demonstrate reasonable grounds of innocence at the bail stage.

4. Impact of the Stringent Bail Regime

The stringent bail provisions under the NDPS Act have attracted both judicial endorsement and scholarly criticism. On one hand, they serve an important deterrent function by preventing habitual offenders and organised traffickers from exploiting procedural leniency. On the other hand they have been criticised for contributing to prolonged pre-trial incarceration, particularly in cases of doubtful recovery, procedural lapses or false implication  thereby raising concerns relating to personal liberty under [xvi]Article 21 of the Constitution.

Conclusion

The law of bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 stands apart as a consciously stringent legal framework shaped by the gravity of narcotics offences. Section 37 embodies a firm legislative resolve that in cases involving serious drug crimes, personal liberty must yield to the wider interests of public safety and social order. By reversing the ordinary presumption in favour of bail and imposing demanding statutory conditions the law treats custody as the rule and release as a carefully guarded exception. At the same time, this regime does not dispense with judicial responsibility. Its proper application requires courts to engage in disciplined reasoned scrutiny ensuring that the exceptional severity of the statute does not result in unjust or prolonged pre-trial detention. Ultimately, the NDPS bail framework reflects a legal balance one that seeks to curb a grave social menace while remaining anchored to constitutional principles of fairness and due process of law.

[i] Baweja, Dakshq. “Judicial Discretion in Grant of Bail.” Issue 1 Indian JL & Legal Rsch. 5 (2023): 1.

[ii] Sreenu, Sri M. “Bail, Anticipatory Bail, Mandatory Bail & Bail After Conviction.” 2019,

[iii] Prerna Sharma , ‘Misuse of Bail Provisions in India’ (2023) Vol 6, Issue 2, Pg 4 “International Journal of Law Management & Humanities <https://ijlmh.com/wp-content/uploads/Misuse-of-Bail-Provisions-in-India.pdf> accessed 23 January 2026.

[iv] The Narcotic Drugs and Psychotropic Substances, Act 1985, s 37(1).

[v] State (GNCT of Delhi) Narcotics Control Bureau V Lokesh Chadha (2021) SCC ONLINE SC 190.

[vi] Krishna Vijay Singh and Muneeb Rashid, ‘Bail Under the NDPS Act: A Judicial Tightrope Between Liberty and Stringent Statutory Conditions’ (LiveLaw, 2024) <https://www.livelaw.in/law-firms/law-firm-articles-/bail-narcotic-drugs-psychotropic-substances-ndps-act-krishna-vijay-singh-muneeb-rashid-malik-kochhar-co-law-firm-articles-302768> accessed 23 January 2026.

[vii]The Narcotic Drugs and Psychotropic Substances, Act 1985, s 37(b)(ii).

[viii] Editor, ‘Bail in NDPS case on ground of undue delay in trial, unfettered by rigours of S. 37’ (SCC Times, 14 January 2025) <https://www.scconline.com/blog/post/2025/01/14/bail-ndps-case-undue-delay-in-trial-unfettered-by-s-37-punjab-haryana-hc/> accessed 23 January 2026.

[ix] Bharatiya Nagarik Suraksha Sanhita, 2023, s 483.

[x] The Narcotic Drugs and Psychotropic Substances, Act 1985, s 42.

[xi] The Narcotic Drugs and Psychotropic Substances, Act 1985, s 50.

[xii] The Narcotic Drugs and Psychotropic Substances, Act 1985, s 47.

[xiii] Thakkar, Arya and Vedant Karia, ‘Bail Under NDPS Act: Guilty Until Proven Innocent?’ (2023) Vol V, Issue II, “Indian Journal of Law and Legal Research” < https://3fdef50c-add3-4615-a675-a91741bcb5c0.usrfiles.com/ugd/3fdef5_78d456e256754312bfec94aa44ec2bd7.pdf > accessed 23 January 2026.

[xiv] Thakkar, Arya, and Vedant Karia. “Bail under NDPS Act: Guilty until Proven Innocent?.” Issue 2 Indian JL & Legal Rsch. 5 (2023): 1.

[xv] State of Kerala v. Rajesh (2020) 12 SCC 122

[xvi] The Constitution of India 1950, art 21.