--- title: "Bail Under the NDPS Act: Reconciling Section 37 with the Constitutional Right to Personal Liberty" date: 2026-07-01 author: "Smita Paliwal" url: https://ksandk.com/criminal/bail-under-ndps-act-section-37-constitutional-right-personal-liberty/ --- # Bail Under the NDPS Act: Reconciling Section 37 with the Constitutional Right to Personal Liberty Posted On - 1 July, 2026 • By - Smita Paliwal ![Bail Under the NDPS Act: Reconciling Section 37 with the Constitutional Right to Personal Liberty](https://ksandk.com/wp-content/uploads/846288.jpeg) ## **Introduction** Bail jurisprudence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) occupies a unique position within India’s criminal justice framework. Unlike the general principles governing bail under the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly the Code of Criminal Procedure, 1973), Parliament has consciously imposed stringent statutory restrictions on the grant of bail in serious narcotics offences. The rationale is clear: illicit drug trafficking is viewed not merely as an individual criminal act but as an organised activity with far-reaching consequences for public health, national security and economic stability. This legislative policy finds expression in Section 37 of the NDPS Act, which substantially curtails judicial discretion by prescribing the well-known “twin conditions” for granting bail in offences involving commercial quantities and certain other serious offences. Consequently, courts must navigate a delicate balance between enforcing Parliament’s stringent anti-drug policy and safeguarding the constitutional guarantee of personal liberty under Article 21 of the Constitution. The issue has assumed renewed significance following the Supreme Court’s decision in State of Punjab v. Sukhwinder Singh @ Gora (2026)[[1]](#footnote-10947). The Court reiterated that prolonged incarceration or delay in trial, though constitutionally relevant, cannot by itself dilute the mandatory requirements contained in Section 37. The judgment further clarifies the relationship between statutory restrictions on bail and constitutional protections, while reaffirming the legislature’s intent to treat commercial narcotics offences differently from ordinary criminal prosecutions. ## **Understanding the Exceptional Nature of Section 37** Indian criminal jurisprudence traditionally proceeds on the principle that “bail is the rule and jail is the exception.” This principle, developed through decades of constitutional jurisprudence, recognises that every accused enjoys the presumption of innocence until proven guilty and that pre-trial detention should not become punitive. The NDPS Act represents a conscious legislative departure from this principle. Section 37 begins with a non-obstante clause overriding the ordinary provisions governing bail. For offences involving commercial quantities, as well as offences punishable under Sections 19, 24 and 27A, bail cannot be granted unless two mandatory conditions are satisfied the Public Prosecutor has been afforded an opportunity to oppose the application; and where bail is opposed, the court is satisfied that: - there are reasonable grounds for believing that the accused is not guilty, and - the accused is not likely to commit any offence while on bail. These conditions are cumulative rather than alternative. Unless both are fulfilled, the statutory bar remains operative. Importantly, the expression “reasonable grounds” demands substantially more than the existence of an arguable defence. The Supreme Court has consistently held that it requires credible material capable of persuading the court, at least prima facie, that the prosecution case suffers from significant infirmities. Mere absence of conclusive evidence at the bail stage is insufficient. The legislative intent behind this framework is equally evident. Parliament recognised that narcotics trafficking often involves sophisticated criminal networks capable of influencing witnesses, destroying evidence and continuing illegal operations if released during investigation or trial. Section 37 therefore seeks to protect larger societal interests by restricting judicial discretion in serious narcotics offences. ## **Why NDPS Bail Jurisprudence Differs from Ordinary Criminal Law** Unlike offences under the Indian Penal Code or the Bharatiya Nyaya Sanhita, offences involving commercial quantities under the NDPS Act carry a statutory presumption against release. This distinction reflects the legislature’s assessment that narcotics offences possess characteristics fundamentally different from conventional crimes. Drug trafficking frequently operates through organised syndicates spanning multiple jurisdictions, generating enormous illicit profits while financing other forms of organised crime. Investigations often involve cross-border intelligence, digital evidence, financial trails and coordinated operations among several enforcement agencies. Parliament therefore considered conventional bail principles inadequate to address these unique enforcement challenges. Accordingly, courts exercising jurisdiction under the NDPS Act do not enjoy the same degree of discretion ordinarily available while deciding bail applications under the BNSS. Instead, judicial discretion is channelled through the mandatory statutory framework established by Section 37. This distinction has repeatedly been emphasised by the Supreme Court, which has consistently observed that courts cannot dilute explicit legislative restrictions merely because general criminal law adopts a more liberal approach to bail. ## **Constitutional Protection Under Article 21** Although Section 37 imposes stringent statutory conditions, it does not operate in a constitutional vacuum. Article 21 guarantees that no person shall be deprived of personal liberty except according to a procedure established by law. Over the past four decades, judicial interpretation has considerably expanded the scope of Article 21 to include procedural fairness, humane treatment during detention and the right to a speedy trial. Beginning with Hussainara Khatoon v. State of Bihar, the Supreme Court recognised that prolonged incarceration of undertrial prisoners without meaningful progress in criminal proceedings violates constitutional guarantees. This principle was subsequently reinforced in A.R. Antulay v. R.S. Nayak, where the Court held that undue delay in criminal proceedings may itself constitute an infringement of Article 21. However, these decisions arose in the context of ordinary criminal prosecutions where no special statutory restrictions comparable to Section 37 existed. Consequently, the constitutional challenge in NDPS cases has never been whether Article 21 applies but rather how constitutional guarantees should operate alongside Parliament’s deliberate decision to impose exceptional limitations on bail. This tension lies at the heart of modern NDPS jurisprudence. ## **Evolution of Supreme Court Jurisprudence on Section 37** The Supreme Court’s interpretation of Section 37 has gradually evolved through a series of significant decisions, each reinforcing the exceptional nature of NDPS bail while attempting to preserve constitutional safeguards. One of the earliest authoritative pronouncements came in Collector of Customs v. Ahmadalieva Nodira, where the Court held that the limitations contained in Section 37 are mandatory and substantially restrict judicial discretion. The Court observed that satisfaction regarding the accused’s innocence cannot be based on speculative or superficial considerations but must emerge from objective evaluation of the available material. The principle was reaffirmed in Union of India v. Ram Samujh, where the Court highlighted the devastating societal impact of narcotics trafficking and observed that Parliament intentionally introduced stringent bail provisions because ordinary criminal law had proved inadequate in addressing organised drug offences. More recently, in State of Kerala v. Rajesh (2020)[[2]](#footnote-7888), the Supreme Court again stressed that liberal principles governing ordinary bail cannot automatically apply to NDPS prosecutions. The Court clarified that recording satisfaction under Section 37 is not a procedural formality but a jurisdictional requirement. Unless both statutory conditions are satisfied, courts lack the authority to grant bail. The position was further strengthened in Narcotics Control Bureau v. Mohit Aggarwal (2022). There, the Court criticised the High Court for granting bail primarily on considerations that ordinarily govern criminal proceedings, including prolonged custody and perceived weaknesses in the prosecution case, without recording the mandatory satisfaction required under Section 37. The judgment reinforced that constitutional sympathy cannot replace statutory compliance. These decisions collectively established a consistent doctrinal position: Section 37 creates an exceptional legal regime where liberty remains protected, but only within the boundaries consciously prescribed by Parliament. ## **The Constitutional Debate: Liberty versus Legislative Policy** Despite the apparent rigidity of Section 37, constitutional jurisprudence continued to evolve. In Union of India v. K.A. Najeeb (2021)[[3]](#footnote-30796), although decided under the Unlawful Activities (Prevention) Act, 1967, the Supreme Court held that constitutional courts retain the power to grant bail where prolonged incarceration and extraordinary delay render continued detention incompatible with Article 21. The Court observed that statutory restrictions cannot indefinitely eclipse constitutional freedoms where the criminal trial itself has become virtually impossible to conclude within a reasonable period. Subsequently, in Mohd. Muslim @ Hussain v. State (NCT of Delhi) (2023), the Supreme Court extended this constitutional reasoning to the NDPS Act. Recognising that some undertrial prisoners remained incarcerated for years while trials progressed at an exceptionally slow pace, the Court observed that Section 37 cannot be interpreted so rigidly as to justify indefinite pre-trial detention. It emphasised that constitutional courts must remain alive to situations where procedural delay effectively converts the presumption of innocence into prolonged punishment before conviction. These decisions generated an important constitutional debate. While earlier judgments emphasised strict adherence to the statutory text, *Najeeb* and *Mohd. Muslim* highlighted that constitutional guarantees continue to inform the exercise of judicial discretion even under special statutes. The Supreme Court’s recent decision in State of Punjab v. Sukhwinder Singh @ Gora (2026) seeks to reconcile these seemingly divergent lines of authority by clarifying the circumstances in which Article 21 may legitimately influence the application of Section 37 without undermining Parliament’s legislative mandate. ## **The Supreme Court’s Decision in *State of Punjab v. Sukhwinder Singh @ Gora (2026)*** The Supreme Court’s decision in *State of Punjab v. Sukhwinder Singh @ Gora* provides important clarity on the interplay between Section 37 of the NDPS Act and Article 21 of the Constitution. The case arose from the recovery of approximately 1.46 kilograms of heroin, a quantity falling within the category of commercial quantity under the NDPS Act. The accused had remained in custody for a considerable period, while the trial progressed slowly. Taking note of the prolonged incarceration, the High Court granted bail primarily on the ground that continued detention would violate the accused’s right to a speedy trial under Article 21. The State challenged the order before the Supreme Court, contending that the High Court had overlooked the mandatory requirements prescribed under Section 37. Allowing the appeal, the Supreme Court set aside the order granting bail. The Court held that the High Court had failed to undertake the statutory exercise required under Section 37. There was neither any finding that reasonable grounds existed to believe the accused was not guilty nor any satisfaction that he was unlikely to commit an offence while on bail. In the absence of these findings, the statutory embargo continued to operate. The Court reiterated that while Article 21 remains a foundational constitutional guarantee, it cannot be invoked to completely bypass an express legislative mandate. The constitutional right to liberty and the statutory restrictions under the NDPS Act are not competing principles but complementary ones that must be harmoniously interpreted. Significantly, the Court distinguished earlier constitutional decisions such as *K.A. Najeeb* and *Mohd. Muslim* on their facts. It observed that those cases did not establish an absolute proposition that every prolonged incarceration justifies release irrespective of statutory conditions. Instead, they recognised that constitutional courts may intervene in truly exceptional situations where continued detention becomes manifestly unjust. Such intervention, however, cannot become a substitute for the statutory framework enacted by Parliament. The judgment therefore reinforces an important doctrinal principle: **delay in trial is a relevant consideration, but it is not an independent ground for granting bail in commercial quantity NDPS cases where Section 37 continues to apply.** ## **Reconciling Section 37 with Article 21: A Harmonious Construction** The significance of *Sukhwinder Singh* lies not merely in the outcome but in its constitutional reasoning. Rather than treating Section 37 and Article 21 as mutually exclusive, the Court adopted a doctrine of harmonious construction. Constitutional rights continue to guide judicial interpretation, but they do not authorise courts to disregard clear statutory requirements except in the rarest circumstances where constitutional intervention becomes indispensable. This approach reflects an established constitutional principle: Parliament is competent to prescribe higher procedural thresholds for certain classes of offences, provided those restrictions remain reasonable and do not extinguish fundamental rights altogether. Accordingly, courts considering bail under the NDPS Act must first examine whether the prosecution’s material discloses reasonable grounds for believing that the accused is not guilty and whether the risk of reoffending is sufficiently low. Only after engaging with these statutory requirements can constitutional concerns such as prolonged incarceration or trial delay meaningfully enter the analysis. The judgment therefore restores doctrinal certainty by reaffirming that Section 37 remains the primary statutory framework governing bail in commercial quantity cases, while Article 21 continues to function as a constitutional safeguard against exceptional cases of manifest injustice. ## **Practical Implications for NDPS Bail Litigation** The decision has significant implications for investigators, prosecutors, defence counsel and courts. For defence practitioners, the judgment underscores that arguments based solely on prolonged custody are unlikely to succeed. Bail applications must directly address the twin conditions under Section 37 by demonstrating substantial weaknesses in the prosecution’s case, procedural irregularities affecting the recovery, deficiencies in compliance with mandatory safeguards under the NDPS Act, or other material capable of creating reasonable grounds regarding innocence. Constitutional arguments concerning delay should supplement, rather than replace, the statutory analysis. For investigating agencies and prosecutors, the decision reinforces the importance of conducting prompt and legally compliant investigations. Although Section 37 provides a stringent statutory shield against routine bail, it cannot become a justification for avoidable delays in investigation or trial. Prolonged incarceration caused by prosecutorial inefficiency may still invite constitutional scrutiny in appropriate cases. Trial courts are also likely to adopt a more structured approach while deciding NDPS bail applications. Rather than relying upon broad observations concerning personal liberty, courts will be expected to record specific findings regarding both statutory conditions before granting or refusing bail. This is likely to improve consistency in bail orders while reducing unnecessary appellate intervention. More broadly, the judgment reflects the judiciary’s continuing effort to preserve the effectiveness of India’s anti-narcotics regime without abandoning constitutional commitments to fairness, due process and personal liberty. ## **Conclusion** The law governing bail under the NDPS Act continues to evolve at the intersection of constitutional liberty and legislative policy. Section 37 represents Parliament’s considered determination that offences involving commercial quantities and organised narcotics trafficking warrant a higher threshold for release than ordinary criminal prosecutions. Consequently, the statute deliberately limits judicial discretion through the twin conditions that require satisfaction regarding both the accused’s prima facie innocence and the likelihood of refraining from future offences. The Supreme Court’s decision in *State of Punjab v. Sukhwinder Singh @ Gora (2026)* reinforces this legislative framework while clarifying the constitutional role of Article 21. The judgment makes it clear that prolonged incarceration or delay in trial cannot, by themselves, override the mandatory requirements of Section 37. At the same time, it preserves the constitutional authority of courts to intervene where exceptional circumstances reveal a genuine violation of the right to personal liberty. Viewed alongside *Rajesh*, *Mohit Aggarwal*, *Mohd. Muslim* and *K.A. Najeeb*, the judgment contributes to a more coherent body of NDPS bail jurisprudence. It confirms that neither statutory restrictions nor constitutional rights operate in isolation; both must be interpreted harmoniously to ensure that the criminal justice system remains effective against organised narcotics offences while continuing to respect the guarantees embodied in Article 21. As NDPS prosecutions continue to increase across India, this jurisprudence is likely to shape future litigation involving commercial quantity bail under the NDPS Act, Section 37 twin conditions, constitutional challenges to prolonged incarceration, and the broader balance between individual liberty and public interest. For practitioners, investigators and courts alike, *Sukhwinder Singh* serves as a timely reminder that rigorous statutory compliance and constitutional fidelity are not competing objectives but complementary pillars of a fair criminal justice system. 1. State of Punjab v. Sukhwinder Singh @ Gora – 2026 INSC 411 (Criminal Appeal No. 2143 of 2026). [↑](#footnote-ref-10947) 2. State of Kerala v. Rajesh – (2020) 12 SCC 122. [↑](#footnote-ref-7888) 3. Union of India v. K.A. Najeeb – (2021) 3 SCC 713. [↑](#footnote-ref-30796) *Last Updated on 1 July, 2026* --- ## Office Locations - [New Delhi](https://ksandk.com/locations/top-corporate-law-firm-in-delhi/) (HQ): +91-11-41318190 | info@ksandk.com - [Mumbai](https://ksandk.com/locations/top-corporate-law-firm-in-mumbai/): 3 offices (Nariman Point, Lower Parel, Andheri) | mumbai@ksandk.com - [Bangalore](https://ksandk.com/locations/top-corporate-law-firm-in-bangalore/): bangalore@ksandk.com - [Chennai](https://ksandk.com/locations/chennai/): chennai@ksandk.com - [Hyderabad](https://ksandk.com/locations/hyderabad/): hyderabad@ksandk.com - [Pune](https://ksandk.com/locations/pune/): pune@ksandk.com - [Kochi](https://ksandk.com/locations/kochi/): kochi@ksandk.com ## Contact - [Contact Page](https://ksandk.com/contact-us/) - General: info@ksandk.com | +91-11-41318190 - WhatsApp: +91-7428567444 - [Privacy Statement](https://ksandk.com/privacy-statement/) - [Terms of Use](https://ksandk.com/terms-of-use/)