NDPS Section 37 Bail: How Commercial-Quantity Cases Are Decided

Ask any criminal lawyer which bail applications are hardest to win and the answer is usually the same: drug cases where the quantity is “commercial”. The reason is one provision. NDPS section 37 bail is governed by a statutory test that sits on top of the ordinary law of bail, and the Supreme Court has repeatedly set aside High Court orders that ignored it. This article explains what section 37 says, how the quantity is fixed (because that decides whether the section applies at all), and what arguments are still open to an accused person, including the tension in the case law on long custody.

What Does Section 37 of the NDPS Act Say About Bail?

Section 37 of the NDPS Act governs the grant of bail and imposes additional restrictions in specified cases. Section 37(1)(a) makes every offence under the Act cognizable, while section 37(1)(b) prescribes the conditions governing bail in cases involving commercial quantity and offences under sections 19, 24 and 27A. Under section 37(1)(b), as amended in 2001, a person accused of any of these offences cannot be released on bail or on his own bond unless two conditions are met. First, the Public Prosecutor must be given an opportunity to oppose the application. Second, where the Public Prosecutor opposes the application, 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 on bail. Section 37(2) makes these restrictions additional to those imposed under the general law of bail.

The provision is stated to operate despite the Code of Criminal Procedure. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the general bail powers that used to sit in sections 437 and 439 of the old Code are now in sections 480 and 483, and section 37 continues to control them for the offences it names. The practical point is that an NDPS bail court cannot simply run the ordinary checklist of flight risk, tampering and the length of detention. It must first clear the statutory gate.

How Commercial Quantity Determines Bail under the NDPS Act

The Act divides drug offences by quantity. “Small quantity” and “commercial quantity” are defined in section 2(xxiiia) and section 2(viia), by reference to a notified table; anything between the two is an intermediate quantity. The table in force was notified on 19 October 2001 (S.O. 1055(E)) and has since been extended to newer substances. A few entries illustrate the scale: for heroin, small quantity is up to 5 grams and commercial quantity is 250 grams or more; for ganja, 1 kilogram and 20 kilograms; for charas, 100 grams and 1 kilogram; for cocaine, 2 grams and 100 grams. The figures should always be checked against the current notification for the substance concerned, because the table is long and has been amended.

Quantity drives both the punishment and the bail test. Section 21(c), for example, punishes manufactured-drug offences involving commercial quantity with rigorous imprisonment of ten to twenty years and a fine. Only the commercial-quantity band, together with sections 19, 24 and 27A, brings in section 37. An accused whose alleged quantity is small or intermediate is therefore tested under the ordinary law of bail, and fixing the quantity correctly is often the most valuable work done at the bail stage.

The NDPS Mixture Rule: How Drug Quantity Is Calculated for Bail

Drugs are rarely seized in pure form. For some years the Supreme Court held that only the actual drug content of a mixture counted when fixing the quantity (E. Micheal Raj v. Intelligence Officer, NCB, (2008) 5 SCC 161). A three-judge bench overruled that view in Hira Singh v. Union of India, (2020) 20 SCC 272 (April 2020): where the substance is a mixture, the weight of the neutral substances is counted together with the drug when deciding whether the quantity is small or commercial, in line with the notification’s note on mixtures.

The consequence is harsh for accused persons found with diluted material, and it is the main reason so many NDPS bail applications involving commercial quantity face the additional restrictions under section 37. Defence counsel still have room to argue that something is not a neutral substance at all, for example that it is packaging or a carrier rather than part of the mixture, and that the laboratory’s report does not support the weight attributed to the drug. A High Court decision on that point has been reported, but we have not read it and do not rely on it here.

How Courts Apply the Twin Conditions for NDPS Bail

The Supreme Court’s reading has been consistent and strict. In Union of India v. Rattan Mallik, (2009) 2 SCC 624 (23 January 2009), the Court set aside a High Court order that had granted relief without recording the section 37 satisfaction, and said that “reasonable grounds” means something more than prima facie grounds. In State of Kerala v. Rajesh (24 January 2020), it said that no liberal approach to bail is called for in NDPS cases and that recording the satisfaction is indispensable.

The most useful modern statement for both sides is Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18 SCC 374 (19 July 2022, a bench led by Ramana CJI). The Court read “reasonable grounds” as credible, plausible grounds, which need not amount to a finding of innocence and do not require the court to weigh the evidence in detail. It added that the length of custody, the filing of the charge-sheet and the start of the trial are not by themselves grounds for bail, and that confessional statements under section 67 must be disregarded following Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, where the Court held that NDPS officers are “police officers” for section 25 of the Evidence Act. That last point is the strongest practical tool for an accused who has been named only in a co-accused’s statement.

The same message came repeatedly from late 2025 onward. In Union of India v. Vigin K. Varghese, 2025 INSC 1316 (13 November 2025), the Supreme Court set aside two High Court orders in a large import case because section 37 had not been analysed, saying that commercial-quantity offences stand on a distinct statutory footing and that delay alone is not enough; it remitted the matter for a reasoned order. A week earlier, a bench in Union of India v. Namdeo Ashruba Nakade (7 November 2025) set aside bail in a large ganja case where no satisfaction had been recorded and about sixteen months in custody was held not excessive.

Long Incarceration and Bail under Section 37 of the NDPS Act

Long incarceration is one of the most contested grounds in bail applications under section 37 of the NDPS Act. The question is whether prolonged pre-trial detention can justify release even when the statutory restrictions ordinarily apply. In Mohd. Muslim @ Hussain v. State (NCT of Delhi) (March 2023, Ravindra Bhat and Dipankar Datta JJ), the Court held that a plain, literal reading of section 37 would make bail practically impossible, adopted a reasonable, prima facie view of the twin conditions, and granted bail to an accused who had spent more than seven years in custody while trial moved slowly. It relied on the general principle, developed in Satender Kumar Antil v. CBI, (2022) 10 SCC 51, that Article 21 and the statutory protections for long-detained under-trials apply to special laws. The defence argument is therefore that section 37 is not a license for indefinite pre-trial detention.

The prosecution answer, and the direction of the most recent decisions, is that Mohd. Muslim turns on very long custody and a stalled trial, and that shorter periods do not qualify. In State of Punjab v. Sukhwinder Singh @ Gora, 2026 INSC 411 (24 April 2026), the Court set aside a High Court order which had said section 37 could be “diluted” to enable a speedy trial, holding that the conditions are mandatory and that Article 21 is to be read harmoniously with them. In State of Punjab v. Balraj Singh @ Billa, 2026 INSC 618 (2 June 2026), the Court held that one year and seven months in custody was not prolonged in a case carrying a possible twenty-year sentence, and noted that the meaning of “prolonged incarceration” under special statutes is the subject of a pending reference to a larger bench. Until that is decided, an accused relying on delay should show a long period, a concrete reason why the trial will not conclude soon, and, ideally, an independent weakness in the prosecution case.

A Practical Checklist for the Bail Stage

• Test the quantity first. Examine the seizure memo, the weighing record and the laboratory report, and apply the mixture rule honestly. A fall below the commercial threshold removes section 37.
• Check the statutory steps. Search, seizure and sampling provisions of the Act are routinely raised at the bail stage; the court need not decide them finally, but a clear violation goes to “reasonable grounds”.
• Strip out inadmissible material. Remove section 67 statements from the picture and show what is left against the accused.
• Address both limbs. Provide material on antecedents and conduct for the “not likely to offend” limb. A bare denial fails; the Supreme Court has refused bail on that limb where there were earlier NDPS cases.
• Use delay carefully. Present it as one factor and not the whole case.

On the application of the Act in Gujarat, we have not found a reported High Court decision on commercial-quantity bail that we can verify, and readers should not assume a local rule different from the Supreme Court’s.

Open Questions

Three points remain unsettled. First, the content of “prolonged incarceration” and how Article 21 interacts with section 37 awaits the larger bench. Second, the weight of Mohd. Muslim against the later strict line is, at best, unresolved in practice. Third, the proviso questions that arise where the accused is a woman, a child or ill depend on the exact text of the section and should be checked against the current Act before reliance.

Frequently Asked Questions

What is section 37 of the NDPS Act?

It is the provision that restricts bail. For commercial-quantity offences and offences under sections 19, 24 and 27A, bail can be granted only after the Public Prosecutor is heard and the court is satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to offend on bail.

How difficult is it to get bail under section 37 of the NDPS Act?

Getting bail under section 37 of the NDPS Act is difficult because the accused must satisfy the statutory twin conditions. The court must find reasonable grounds to believe that the accused is not guilty and is unlikely to commit an offence while on bail. The Public Prosecutor must also be given an opportunity to oppose the application.

Does section 37 apply to small quantity cases?

No. Section 37(1)(b) applies to commercial quantity and the specified sections. A small-quantity or intermediate-quantity case is decided under the ordinary law of bail.

What is the commercial quantity of heroin, ganja or charas?

Under the 2001 notification, commercial quantity is 250 grams for heroin, 20 kilograms for ganja and 1 kilogram for charas, with the small-quantity limits at 5 grams, 1 kilogram and 100 grams respectively. Check the current notification before relying on these figures.

Does the weight of the neutral substance count in a mixture?

Yes. Following Hira Singh v. Union of India (2020), the weight of the whole mixture, including neutral substances, is counted in deciding whether the quantity is small or commercial.

Can long custody get me bail despite section 37?

It can, but only in strong cases. Mohd. Muslim (2023) granted bail after more than seven years of custody, while later Supreme Court decisions have held that custody of about a year or two is not enough.

Sources

• Narcotic Drugs and Psychotropic Substances Act, 1985, sections 2(viia), 2(xxiiia), 21 and 37 (as amended in 2001); Ministry of Finance notification S.O. 1055(E), 19 October 2001 — Narcotics Control Bureau; 2001 Amendment Act.
• Bharatiya Nagarik Suraksha Sanhita, 2023, sections 480 and 483 — India Code.
• Union of India v. Rattan Mallik, (2009) 2 SCC 624, 23 January 2009 — judgment.
• State of Kerala v. Rajesh, 24 January 2020 — LiveLaw report.
• Hira Singh v. Union of India, (2020) 20 SCC 272, April 2020 — LiveLaw report; E. Micheal Raj v. Intelligence Officer, NCB, (2008) 5 SCC 161 (overruled on this point).
• Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 — LiveLaw report.
• Narcotics Control Bureau v. Mohit Aggarwal, (2022) 18 SCC 374, 19 July 2022 — LiveLaw report.
• Mohd. Muslim @ Hussain v. State (NCT of Delhi), March 2023 — LiveLaw report; Satender Kumar Antil v. CBI, (2022) 10 SCC 51.
• Union of India v. Vigin K. Varghese, 2025 INSC 1316, 13 November 2025 — report; Union of India v. Namdeo Ashruba Nakade, 7 November 2025 — report.
• State of Punjab v. Sukhwinder Singh @ Gora, 2026 INSC 411, 24 April 2026 — report; State of Punjab v. Balraj Singh @ Billa, 2026 INSC 618, 2 June 2026 — judgment.