Bail order set aside: Twin conditions laid down under section 37 NDPS Act should be considered in commercial quantity cases

Appeal

2. The present appeal has been filed against impugned judgment and order dated 15.10.2025 in CRM-M No. 46383 of 2025 (O&M) passed by the High Court of Punjab and Haryana at Chandigarh, whereby the respondent herein came to be released on regular bail in connection with FIR No. 06 dated 10.01.2024 registered under Section 21(c)/29/61 and 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Brief Facts

FIR subject is based on the passing vehicle: 3. The case set up in the subject FIR against the accused persons is that on 10.01.2024, the police had set-up a check point at the bridge on Canal Road, Village Veeram, and were conducting a check of the vehicles passing. Upon seeing the police party, a car (Mahindra XUV 300) bearing registration No. UP-15-DD-6521 attempted to flee, however the car got switched off and stopped on the katcha side of the road. Upon enquiry, the driver of the vehicle identified himself as Gurjit Singh @ Geetu and the other occupant stated his name as Sukhwinder Singh @ Gora. Since no satisfactory response was received qua the papers of the the car, the police suspected presence of intoxicant material in their possession.

Persons inside the car were in possession of 1.465 kg of contraband (heroin): 4. Consequently, notice was issued to them under Section 50 of the NDPS Act and the Deputy Superintendent of Police, arrived at the stop to conduct search. He prepared consent memos for the search and signature of both these persons was taken. Upon search, a total of 1. 465 Kg., of heroin was recovered from their possession. The said contraband was weighed, sealed and seized vide recovery memos. This was after compliance of the statutory provisions mandated under Section 50 of the NDPS Act. The FSL report confirmed that the recovered substance is diacetylmorphine/heroin.

Respondent is operating drug trafficking network from inside jail using illegal mobile phones: 5. The case against the respondent herein, Balraj Singh @ Billa, is that the co-accused persons have made a disclosure on 11.01.2024 that the respondent had directed them to collect the heroin from the canal area and keep it for further supply on his instructions, while lodged in Central Jail, Goindwal Sahib. Pursuant thereto, he came to be arrayed as an accused vide DDR dated 11.01.2024. It was further found during investigation that the respondent is operating a drug trafficking network from inside jail using illegal mobile phones.

Bail dismissed by special judge and appeal preferred before High Court: 6. The respondent preferred an application seeking regular bail before Ld. Judge Special Court Tarn Taran, which came to be numbered as B.A. 1868/2025. The same came to be rejected vide order dated 03.07.2025. An appeal was preferred by the respondent before the High Court of Punjab and Haryana at Chandigarh which came to be numbered as CRM-M-46383-2025 (O&M).

High Court granted regular bail: 7. The High Court vide the impugned order dated 15.10.2025 granted regular bail to the respondent. On the aspect of criminal antecedents, the Court observed that antecedents alone cannot be the basis for refusal of prayer of bail. The Court relied upon the period of custody and the likelihood of the trial taking a considerable time to release the respondent on bail.

8. It is a matter of record that in relation to the very same FIR, all three accused persons had preferred applications for bail under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023. These applications were allowed and all three accused persons were granted bail vide separate orders. Here we may observe that in relation to the other two accused persons, this Court vide orders dated 24.04.2026 in Crl. Appeal @ SLP (Crl.) No. 5075 of 2026 and Crl. Appeal @ SLP (Crl) No. 5020 of 2026 has already set aside the order granting bail by the High Court, hence we need not elaborately deal with the legal issues therein.

9. In the instant case after hearing the learned counsel for the parties this Court vide the interim order dated 07.04.2026 had directed the instant respondent Balraj Singh @ Billa to surrender. It is a matter of record that the present respondent has thus surrendered, as is evident from the affidavit of Mr. Surendra Lamba, dated 09.04.2026.

Analysis

Our View

Appeal against bail is different from cancellation of bail

12. At the outset, it has been reiterated by this Court that on many occasions, an appeal against grant of bail and an application for cancellation of bail stand on a different footing [See: Ashok Dhankad v. State NCT of Delhi]. Coming to the case at hand, in our view, the issue which arises for our consideration is whether the order granting bail of the High Court is in consonance with the settled principles of law concerning Section 37 of the NDPS Act?

Section 37 NDPS Act

13. For ready reference, Section 37 of the NDPS Act reads as follows:

“37. Offences to be cognizable and non-bailable. –

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), — (a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.]”

(emphasis supplied)

14. As rightly submitted by the appellant State, this Court, in Lalrintluanga Sailo (Supra) while setting aside the bail granted by the High Court therein had held that consideration on the twin conditions under Section 37 of the NDPS Act is essential by the concerned Court. It was observed:

“5. There cannot be any doubt with respect to the position that in cases involving commercial quantity of narcotic drugs or psychotropic substances, while considering the application of bail, the court is bound to ensure the satisfaction of conditions under Section 37(1)(b)(ii) of the NDPS Act. The said provision reads thus:

“37. (1)(b)(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

… … …

15. To the similar effect, this Court in State by the Inspector of Police v. B. Ramu reiterated that satisfaction with the conditions laid down under Section 37 of the NDPS Act is mandatory while entertaining a prayer for bail involving commercial quantity of narcotic drugs. [See also: Ajay Kumar Singh alias Pappu (Supra)]

16. In similar circumstances, this Court in Union of India v. Namdeo Ashruba Nakade6 observed that the mandatory nature of Section 37 cannot be dispensed with:

“12. Prima facie this Court is of the opinion that the Respondent-accused is involved in drug trafficking in an organized manner. Consequently, no case for dispensing with mandatory requirement of Section 37 of the NDPS Act is made out in the present matter.

13. Moreover, this Court is of the view that as the accused has been charged with offences punishable with ten to twenty years rigorous imprisonment, it cannot be said that the Respondent has been incarcerated for an unreasonably long time.” (emphasis supplied)

Twin conditions laid down under section 37 NDPS Act should be considered in commercial quantity cases

17. Keeping in view the above expositions of law, we now proceed to examine the impugned order. The abovementioned decisions of this Court display the consistent view that when it comes to cases involving commercial quantity of narcotics, the mandatory requirements of Section 37 ought to be considered. It is not in dispute that the case at hand, involves commercial quantity. In such a scenario, consideration and reference to the twin conditions enumerated under Section 37 of the NDPS Act was mandatory. Upon a bare perusal of the impugned order, it is evident that there has been no consideration at all by the High Court on the twin conditions. In such a scenario, the impugned order cannot be sustained in the eyes of law.

18. Upon consideration of the case of the respondent against the twin conditions laid down in Section 37, we are of the view that no case for bail is made out. There are antecedents involving commission of offences of the very same nature under the NDPS Act, therefore it cannot be said that he is not likely to commit such an offence while on bail.

19. Moreover, the respondent has only undergone 1 year 7 months, and if found guilty a maximum sentence of twenty years may be imposed upon him. Therefore, it cannot be said that he has suffered incarceration for a long period, warranting interference in view of Article 21 of the Constitution.

Prolonged incarceration and grant of bail in view of Article 21

20. While this Court has recognized on several occasions that prolonged incarceration warrants the grant of bail in view of Article 21 of the Constitution, we have noticed that the application thereof is not uniform. Moreover, there is no doubt that what constitutes “prolonged incarceration” for the purposes of bail, has not been expounded by this Court or the law of the land.

Conclusion

22. However, we note that recently this Court in Tasleem Ahmed v. State Govt. of NCT of Delhi has referred the question concerning the approach of constitutional Courts in bail matters under special statutes, where “Article 21, prolonged incarceration and statutory restrictions intersect”. In view of the said reference, we do not wish to deliberate on this issue further, save and except that in our view paramount consideration is nothing but interest of justice for all. Should there be any conflict between the sovereignty of country and personal liberty, undoubtedly, the former shall prevail, particularly, when a war is waged against the nation, be it in the form of supply of drugs, which vitally affects the national economy and health of the people.

23. Consequently, the appeal is allowed. The impugned order dated 15.10.2025 in CRM-M No. 46383 of 2025 (O&M) passed by the High Court of Punjab and Haryana at Chandigarh is set aside.

Resources

Judgments Cited or Involved

• Ashok Dhankad v. State NCT of Delhi (2025 SCC OnLine SC 1690)
  • Brief: Cited to reiterate that an appeal against the grant of bail and an application for cancellation of bail stand on a different footing.
• State of Meghalaya v. Lalrintluanga Sailo & Anr. (2024 SCC OnLine SC 1751)
  • Brief: Relied upon by the appellant and quoted by the Court to emphasize that in cases involving commercial quantities under the NDPS Act, the court is bound to ensure the satisfaction of the twin conditions under Section 37(1)(b)(ii). It establishes that a liberal approach ignoring the mandate of Section 37 is impermissible.
• Union of India v. Ajay Kumar Singh (2023 SCC OnLine SC 346)
  • Brief: Cited by the appellant to argue against ignoring the bar under Section 37 of the NDPS Act, and referenced by the Court to support the mandatory nature of satisfying Section 37 conditions for bail involving commercial quantities.
• Collector of Customs v. Ahmadalieva Nodira ((2004) 3 SCC 549 : 2004 SCC (Cri) 834)
  • Brief: Quoted within the excerpt of the Lalrintluanga Sailo judgment to interpret the expression “reasonable grounds” in Section 37. It notes that “reasonable grounds” means more than prima facie grounds and contemplates substantial and probable causes for believing the accused is not guilty.
• State by the Inspector of Police v. B. Ramu (2024 SCC OnLine SC 4073)
  • Brief: Cited to reiterate that satisfaction of the conditions laid down under Section 37 of the NDPS Act is mandatory while entertaining a prayer for bail involving commercial quantities of narcotic drugs.
• Union of India v. Namdeo Ashruba Nakade (2025 SCC OnLine SC 3049)
  • Brief: Quoted to observe that the mandatory requirement of Section 37 cannot be dispensed with. It also noted that when an accused is charged with offences punishable by ten to twenty years of rigorous imprisonment, incarceration for over two years cannot be considered unreasonably long.
• Tasleem Ahmed v. State Govt. of NCT of Delhi (Crl. A. @ SLP (Crl.) No. 2867/2026)
  • Brief: Cited to note that the Supreme Court recently referred a question regarding the approach of constitutional Courts in bail matters under special statutes where “Article 21, prolonged incarceration and statutory restrictions intersect”.

Judgments Listed in the Court’s Comparative Chart (Paragraph 21) Exploring “Prolonged Incarceration”:

• Harpreet Singh Talwar @ Kabir Talwar v. State of Gujarat (2025 INSC 662)
  • Brief: Listed to show that bail was not granted after 2 years and 9 months of incarceration under the NDPS and UAPA statutes.
• Union of India v. Vigin K. Varghese (2025 SCC OnLine SC 2440)
  • Brief: Listed to show that an order granting bail was set aside despite more than 3 years of incarceration under the NDPS Act.
• Rabi Prakash v. State of Odisha (2023 SCC OnLine SC 1109)
  • Brief: Listed to show that bail was granted after 3 years and 6 months of incarceration under the NDPS Act.
• Ankur Chaudhary v. State of M.P. (2024 SCC OnLine SC 2730)
  • Brief: Listed to show that bail was granted after more than 2 years of incarceration under the NDPS Act.
• Narcotic Control Bureau v. Lakhwinder Singh (2025 SCC OnLine SC 366)
  • Brief: Listed to show that bail was granted after 4 years and 6 months of incarceration under the NDPS Act.
• Badsha Sk. v. State of W.B. (2023 SCC OnLine SC 1867)
  • Brief: Listed to show that bail was granted after 2 years and 4 months of incarceration under the NDPS Act.

Acts and Sections involved:

1. Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)

• Sections 21(c), 29, 61, and 85
  • Description: These are the substantive penal provisions under which FIR No. 06 dated 10.01.2024 was registered against the accused persons. Section 21(c) specifically relates to offences involving a “commercial quantity” of manufactured drugs or preparations (in this case, 1.465 Kg of heroin). Section 29 pertains to abetment and criminal conspiracy, arising from the respondent allegedly directing co-accused to collect and supply the contraband while he was lodged in jail.
• Section 50
  • Description: This section mandates the statutory procedure and safeguards to be followed when conducting a search of a person. In this case, notice was issued to the co-accused, and a Deputy Superintendent of Police was called to prepare consent memos and oversee the search, ensuring compliance with this section.
• Section 37 (including Section 37(1)(b)(ii))
  • Description: This section dictates that all offences punishable under the Act are cognizable and non-bailable. For cases involving a “commercial quantity” (as well as offences under Sections 19, 24, or 27-A), it imposes mandatory “twin conditions” that must be satisfied before bail can be granted:
    1. The Public Prosecutor must be given an opportunity to oppose the application.
    2. Where opposed, the court must be satisfied that there are reasonable grounds for believing the accused is not guilty of the offence and is not likely to commit any offence while on bail.

2. Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS)

• Section 483
  • Description: The procedural provision under which all three accused persons in this matter preferred their applications for regular bail before the High Court.

3. Constitution of India

• Article 21
  • Description: Guarantees the protection of life and personal liberty. It is discussed in the judgment within the context of whether “prolonged incarceration” without trial can override the statutory restrictions on bail found in special legislations like the NDPS Act. The Court balances this right against national security, the national economy, and public health.

4. Code of Criminal Procedure, 1973 (CrPC)

• General Reference (Section 37 text)
  • Description: Explicitly referenced within Section 37 of the NDPS Act to clarify that the special limitations on bail imposed by the NDPS Act operate notwithstanding anything contained in the CrPC, and are in addition to any limitations standardly applicable under regular criminal procedure.

Party

State of Punjab versus Balraj Singh @ Billa, bearing Criminal Appeal No. 3037 of 2026 (@ Special Leave Petition (Crl.) No. 896 of 2026) – 2026 INSC 618 – June 2, 2026 – Hon’ble Mr. Justice Sanjay Karol and Hon’ble Mr. Justice Nongmeikapam Kotiswar Singh.