Long Custody And A Slow Trial Are Not A Substitute For Section 37
The High Court granted bail on the time already served and the time the trial would take. In a commercial quantity case, the Supreme Court said, that is not the test.
Where the case involves a commercial quantity, the mandatory requirements of Section 37 of the NDPS Act must be considered. Consideration of and reference to the twin conditions was obligatory, and the impugned order showed no consideration of them at all. The order could not be sustained. On applying the twin conditions to the respondent's case, no case for bail was made out.
- Commercial quantity engages Section 37. The twin conditions are not discretionary and must appear in the order.
- Silence is fatal. A bare perusal showed no consideration of the twin conditions, and that alone unsettled the order.
- Custody and trial delay do not displace the statute. They were the only grounds the High Court gave.
- Antecedents count. Offences of the same kind weigh directly against the reasonable-grounds limb.
- Court
- Supreme Court of India
- Bench
- Justice Sanjay Karol, Justice N Kotiswar Singh
- Citation
- 2026 INSC 618
- Reported
- [2026] 7 S.C.R. 39
- Case
- CRIMINAL APPEAL/3037/2026
- Decided
- 1 June 2026
- Outcome
- Appeal allowed; bail set aside
What happened
An FIR was registered under Sections 21(c), 29, 61 and 85 of the NDPS Act. The case against the respondent was that co-accused disclosed he had directed them to collect heroin from a canal area and keep it for onward supply on his instructions — and that he was running a trafficking network from inside jail using illegal mobile phones.
His application for regular bail was rejected. On appeal the High Court granted bail, relying on the period of custody and the likelihood that the trial would take considerable time.
Why the order fell
The quantity was commercial, which brings Section 37 into play. In that situation consideration of and reference to the twin conditions is mandatory.
On a bare perusal of the impugned order there had been no consideration at all of those conditions. The order therefore could not be sustained in law.
The Court then applied the twin conditions itself and found no case for bail, noting antecedents involving the commission of offences of the same character.
Who argued it
Appearances as recorded in the judgment of the Court.
Frequently asked
Can long custody alone get bail in an NDPS commercial quantity case?
No. The twin conditions under Section 37 must be considered, and an order granting bail without them was set aside here.
What are the twin conditions?
That there are reasonable grounds for believing the accused is not guilty, and that he is not likely to commit an offence while on bail.
Does the order have to mention Section 37?
It has to show that the twin conditions were considered. A bare perusal showing no consideration at all was enough to unsettle the order.
Arguing bail in a commercial quantity NDPS case
- Address Section 37 head on and ask the court to record its satisfaction on both limbs. An order silent on them is vulnerable on appeal.
- Do not rest on custody and delay alone in a commercial quantity case. They are relevant, but they do not answer the statute.
- Deal with antecedents openly. Similar prior offences weigh directly against the reasonable-grounds limb.
- Check whether the quantity is genuinely commercial. Section 37 turns on it, and everything follows from that finding.
Source. Supreme Court of India, 2026 INSC 618, [2026] 7 S.C.R. 39, CRIMINAL APPEAL/3037/2026, decided 1 June 2026 by Justice Sanjay Karol, Justice N Kotiswar Singh. This explainer is written from the judgment text as reported.
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