How to Get Bail in a Commercial-Quantity NDPS Case

Bail in a commercial-quantity case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is among the hardest applications in Indian criminal practice. Section 37 requires the court to be satisfied, before trial, that there are reasonable grounds for believing the accused is not guilty, and that he is not likely to commit any offence while on bail.

It is not impossible. But applications succeed on specific, documented grounds rather than on general submissions about liberty, and the preparation matters more than the advocacy.

Start by Testing Whether Section 37 Applies at All?

Section 37 attaches to offences under Sections 19, 24 and 27A, and to offences involving commercial quantity. If the case falls outside those categories, the twin conditions do not operate, and bail is governed by ordinary principles.

So the first exercise is the quantity determination — and it is a genuine battleground.

The governing authority is Hira Singh v. Union of India, (2020) 20 SCC 272, decided on 22 April 2020, in which a three-Judge Bench held that where a drug is seized mixed with neutral substances, the weight of the neutral substance is not excluded; the total mixture is counted. That overruled E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau.

What remains contestable after Hira Singh:

• Mixture versus carrier. The weight of packaging, containers or articles in which contraband was concealed — as distinct from a substance mixed with the drug — does not count.
• The weighment and sampling record, and whether the procedure followed permits the classification asserted.
• The FSL report, and whether it establishes the composition and quantity relied upon.
• The correct notified entry for the substance identified.

If the case can be brought below the commercial threshold, the character of the application changes entirely.

Grounds for Bail in Commercial Quantity NDPS Cases

Non-compliance with mandatory safeguards. The Act contains procedural protections that exist because of the severity of its consequences.

Section 42 governs entry, search, seizure and arrest without a warrant, including the recording and transmission of information in the circumstances the section prescribes.

Section 50 confers on a person about to be searched the right to be taken, if he so requires, before a Gazetted Officer or a Magistrate — a right of which the person must be informed. Non-compliance has repeatedly led to acquittals and to bail.

Section 52 governs the procedure on arrest and seizure, and Section 57 requires a report of arrest and seizure to be made to the immediate official superior within the period specified.

Establishing a material breach of these provisions supports the argument that reasonable grounds exist for believing the accused is not guilty.

Absence of conscious possession. Possession under the Act requires knowledge and control, not mere physical proximity. Where the accused was a passenger, an occupant of premises, or a person present at the scene, and the material does not establish that he knew of and controlled the contraband, that is a substantial ground.

Inadmissible material. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, decided on 29 October 2020, a three-Judge Bench held by majority that officers invested with powers under Section 53 are police officers within the meaning of Section 25 of the Indian Evidence Act, 1872, and that confessional statements recorded under Section 67 are inadmissible.

Where the case against the accused rests substantially on Section 67 statements — very often the statements of co-accused implicating a person from whom nothing was recovered — the admissible material may be thin. Courts have granted bail on that basis, and have set aside convictions resting solely on such statements.

Defects in the chain of custody, the sampling, the sealing, or the deposit of the samples, which go to whether what was analysed is what was seized.

Prolonged incarceration with no prospect of early trial. Where an accused has been in custody for a long period and the trial has not meaningfully progressed, courts have granted bail notwithstanding Section 37, reasoning that the section restricts the grant of bail but does not authorise indefinite pre-trial detention, and that Article 21 continues to operate. This argument requires the custody period, the number of witnesses examined, the total number cited, and the realistic prospect of conclusion to be pleaded with precision.

What Does Not Work for NDPS Bail?

A strong NDPS bail application must avoid arguments that do not directly address the requirements of Section 37. Certain common approaches can weaken the application or fail to establish the reasonable grounds required for bail.

Asserting innocence without material. The court must record satisfaction on reasonable grounds, and it needs something to point to.

Relying on parity alone. Parity with a co-accused released on bail is relevant, but it does not by itself satisfy Section 37, and the court will examine whether the roles are genuinely comparable.

Ignoring the second limb. Applications routinely argue that the accused is not guilty and say nothing about the likelihood of committing an offence while on bail. Both limbs must be addressed.

Citing overruled authority. E. Micheal Raj on quantity, or treating Section 67 statements as evidence, signals that the application is not built on current law.

Preparing an NDPS Bail Application

Obtain the full set of documents early — the FIR, the seizure memo and panchnama, the arrest memo, the Section 50 notice and the accused’s response, the Section 57 report, the weighment and sampling records, the FSL report, and the malkhana and chain-of-custody records.

Read them against each other. In contested NDPS matters, discrepancies between the seizure memo, the sampling record and the FSL report are common, and they are the substance of the defence.

Plead both limbs of Section 37 separately, with material for each.

Where custody has been prolonged, plead it as a distinct ground with dates and trial progress.

And approach the forum sensibly: the Sessions Court first, then the High Court of Gujarat, unless there is a reason to go directly.

A Realistic View

Most commercial quantity NDPS bail applications face a high threshold because Section 37 makes bail difficult to obtain. Applications that succeed generally rely on a wrong quantity classification, a material procedural violation, or prolonged custody where the trial is unlikely to conclude within a reasonable time.

The strongest NDPS bail application is therefore one built around the specific ground supported by the case record, rather than relying on several weak arguments.

FAQs

Can bail be granted in a commercial-quantity NDPS case?

Yes. Bail is possible, but the accused must satisfy the twin conditions under Section 37 of the NDPS Act.

What are the twin conditions under Section 37?

The court must have reasonable grounds to believe that the accused is not guilty and that he is unlikely to commit any offence while on bail.

Does Section 37 apply to every NDPS offence?

No. It applies to offences under Sections 19, 24 and 27A and offences involving commercial quantity.

Can a procedural violation help in getting NDPS bail?

Yes. A material breach of mandatory safeguards under provisions such as Sections 42 and 50 may support a bail application.

Can prolonged custody be a ground for NDPS bail?

Yes. Where the accused has remained in custody for a long period and the trial is unlikely to conclude soon, prolonged incarceration may support bail, subject to the facts of the case.

Is parity with a co-accused enough for bail?

No. Parity may be relevant, but the accused must independently satisfy the requirements of Section 37.

Legal Information Disclaimer

This article is published for general legal information and educational purposes only. It reflects the position of Indian law as researched up to 10 August 2026 and may not account for subsequent amendments, notifications or judicial developments. NDPS matters depend closely on the substance, the quantity, the procedure followed and the material on record. It is not legal advice, does not take into account any individual’s particular facts or circumstances, and no advocate-client relationship arises from reading it. Readers dealing with an actual matter should obtain independent professional advice from a qualified advocate of their own choosing before acting on any information contained here. Statutory provisions, notified figures, rules and case citations referred to in this article have been compiled from published legal materials and may contain errors or omissions, and may have changed since the date stated; no representation or warranty, express or implied, is given as to their accuracy, completeness or currency, and each should be independently verified against the official text or the official record before being relied upon. No liability is accepted for any loss arising from reliance on this article.

Sources / Authorities

• Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 2(vii-a), 2(xxiii-a), 8, 19, 20, 21, 22, 24, 27A, 35, 37, 42, 50, 52, 53, 54, 57 and 67 — India Code, https://www.indiacode.nic.in
• Notification S.O. 1055(E) dated 19 October 2001, as amended
• Hira Singh v. Union of India, (2020) 20 SCC 272, three-Judge Bench, decided 22 April 2020 — https://indiankanoon.org/doc/128615827/
• Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, three-Judge Bench, decided 29 October 2020, by majority — https://indiankanoon.org/doc/143202244/
• State of Punjab v. Baldev Singh, (1999) 6 SCC 172 — Section 50 safeguards — reference as reported; verify against the official record
• Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 — Section 50 compliance — reference as reported; verify against the official record
• Bharatiya Nagarik Suraksha Sanhita, 2023 — Sections 480 and 483
• Constitution of India, Article 21