NDPS Bail: Section 37 Conditions Explained

Bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) follows stricter rules than ordinary criminal law. While bail is generally the rule, NDPS bail can be significantly harder to obtain in cases covered by Section 37, particularly those involving commercial quantity.

Understanding Section 37 of the NDPS Act, the offences to which it applies, and the twin conditions a court must consider is the starting point for any NDPS bail application. The quantity involved, the evidence against the accused, and the likelihood of committing another offence can all be crucial to the court’s decision

Section 37(1)(a) declares every offence punishable under the Act to be cognizable.

Section 37(1)(b) provides that no person accused of an offence punishable under Sections 19, 24 or 27A, or for offences involving commercial quantity, shall be released on bail or on his own bond unless:

• the Public Prosecutor has been given an opportunity to oppose the application for release; and
• where the Public Prosecutor opposes it, 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.

Section 37(2) makes clear that these limitations are in addition to the limitations under the Code of Criminal Procedure — now the Bharatiya Nagarik Suraksha Sanhita, 2023 — or any other law on the grant of bail.

When Does Section 37 of the NDPS Act Apply to Bail?

Determining whether Section 37 of the NDPS Act applies to an NDPS bail application is one of the first and most important questions in any bail matter. The provision is often misunderstood, particularly when determining whether the offence involves a commercial quantity.

The strict Section 37 NDPS bail conditions apply only to:

• offences under Section 19 (embezzlement of opium by a licensed cultivator);
• offences under Section 24 (external dealings in narcotic drugs and psychotropic substances in contravention of Section 12);
• offences under Section 27A (financing illicit traffic and harbouring offenders); and
• offences involving commercial quantity.

Where the quantity is small, or falls in the intermediate band between small and commercial, Section 37 does not apply, and bail is governed by the ordinary principles. The distinction therefore turns on the quantity determination — which is itself contested territory.

What Does “Not Guilty” Mean Under Section 37?

The second twin condition asks a court, before trial, to record satisfaction that there are reasonable grounds for believing the accused is not guilty. That is a demanding standard, and it inverts the ordinary presumption in a way courts have acknowledged.

“Reasonable grounds” has been understood as requiring something more than a prima facie doubt — substantial probable cause for believing the accused is not guilty, based on reasonable material on record. The court is not required to conduct a mini-trial, but it must be able to point to material supporting that belief.

Both limbs must be satisfied. Even where a court is satisfied on the first, it must separately be satisfied that the accused is not likely to commit an offence while on bail.

The Quantity Question, and Why it Decides Everything

Because the twin conditions under Section 37 of the NDPS Act apply to offences involving commercial quantity, quantity classification is one of the most important factors in determining NDPS bail.

In Hira Singh v. Union of India, (2020) 20 SCC 272, decided on 22 April 2020, a three-Judge Bench held that where a narcotic drug or psychotropic substance is seized mixed with one or more neutral substances, the quantity of the neutral substance is not to be excluded — the total weight of the mixture is taken into account in determining whether the quantity is small or commercial.

That decision overruled E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, which had held that only the actual content by weight of the offending drug was relevant.

The practical consequence is severe. A small quantity of a drug carried in a large quantity of a neutral medium can constitute a commercial quantity, attracting both the sentencing regime for commercial quantity and the Section 37 bail conditions.

Anyone relying on E. Micheal Raj is relying on a decision that no longer represents the law. There have been petitions inviting the Supreme Court to reconsider Hira Singh; unless and until that occurs, Hira Singh governs.

A related point is worth noting: courts have distinguished between a mixture and a carrier. The weight of a container or a material in which a packet is concealed — as distinct from a substance mixed with the drug — has been held not to count towards the quantity.

The Other Decision that Changed NDPS Practice

Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, decided on 29 October 2020 by a three-Judge Bench by a majority of two to one, held that officers invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Indian Evidence Act, 1872, and that a confessional statement recorded under Section 67 of the NDPS Act is inadmissible in the trial of an offence under the Act.

This matters at the bail stage as much as at trial. Where the prosecution case against an accused rests substantially or wholly on statements recorded under Section 67 — particularly statements of co-accused — the material available to establish guilt is correspondingly weaker, and that bears directly on whether reasonable grounds exist for believing the accused is not guilty. Courts have granted bail, and set aside convictions, on precisely this basis.

Building an Application under Section 37

The application must give the court material on which it can record the required satisfaction. The arguments that carry weight are specific:

Quantity. Whether the seizure genuinely falls in the commercial band, having regard to the notified thresholds for the substance, the manner of weighment, the sampling and the chemical analysis. If it does not, Section 37 does not apply at all.

Absence of conscious possession. Where the accused was not in possession — a passenger in a vehicle, an occupant of premises, a person present at the scene — and the material does not establish knowledge and control.

Non-compliance with mandatory procedure. The safeguards in Sections 42, 50, 52 and 57 exist to protect against fabrication, and non-compliance goes both to the merits and to whether reasonable grounds exist.

Inadmissible material. Where the case against the accused rests on Section 67 statements, Tofan Singh applies.

Delay and prolonged incarceration. Where trial has not progressed and the accused has been in custody for a long period, courts have granted bail notwithstanding Section 37, on the footing that the section restricts bail but does not authorise indefinite detention without trial. This line of reasoning proceeds from Article 21 and requires the custody period, the number of witnesses and the realistic prospect of the trial concluding to be pleaded precisely.

Practical Points

Establish the quantity classification first, because it determines whether the stringent Section 37 conditions apply.

Obtain and scrutinise the FSL report, the seizure memo, the sampling record and the chain-of-custody documents.

Plead both limbs of the twin conditions separately; an application that addresses guilt but says nothing about the likelihood of committing an offence while on bail is incomplete.

Where custody has been prolonged, plead the period and the trial’s progress precisely, as a distinct ground.

And do not cite E. Micheal Raj, or treat Section 67 statements as evidence of guilt. Both errors are common, and both signal that the application has not been prepared on the current law.

Frequently Asked Questions

1. What is NDPS bail?

NDPS bail refers to release from custody in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 37 imposes stricter conditions for specified offences and commercial quantity cases.

2. When does Section 37 of the NDPS Act apply?

Section 37 applies to offences under Sections 19, 24 and 27A, and offences involving commercial quantity.

3. What are the twin conditions for NDPS bail?

The court must have reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail, after giving the Public Prosecutor an opportunity to oppose the application.

4. Does Section 37 apply to small or intermediate quantities?

Generally, no. Section 37’s special bail restrictions apply to commercial quantity cases and the specified offences, while ordinary bail principles generally govern other quantity categories.

5. Can bail be granted despite prolonged custody in an NDPS case?

Yes. In appropriate cases, prolonged incarceration and delay in trial may support bail considerations, including under Article 21, even where Section 37 applies.

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 19, 24, 27A, 37, 42, 50, 52, 53, 57 and 67 — India Code, https://www.indiacode.nic.in
• Notification S.O. 1055(E) dated 19 October 2001, as amended — small and commercial quantities for notified substances
• Hira Singh v. Union of India, (2020) 20 SCC 272 : 2020 INSC 348, Supreme Court of India, three-Judge Bench, decided 22 April 2020 — total weight of the mixture including neutral substances counts; E. Micheal Raj overruled — https://indiankanoon.org/doc/128615827/
• E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau — overruled by Hira Singh
• Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 : 2020 SCC OnLine SC 882, Supreme Court of India (R.F. Nariman, Navin Sinha and Indira Banerjee, JJ.), Criminal Appeal No. 152 of 2013, decided 29 October 2020, by majority — Section 67 statements inadmissible — https://indiankanoon.org/doc/143202244/
• Indian Evidence Act, 1872, Section 25; Bharatiya Sakshya Adhiniyam, 2023
• Constitution of India, Article 21