The
sacrosanct principle of legal jurisprudence related to bail is that bail is the
rule and jail is an exception. The Hon’ble Supreme Court of India has
recognised and established this principle in catena of Judgments. This rule is
not watertight, and it cannot be measured in a straightjacket formula and
cannot be applied in all the cases. There are specific laws that state bail
cannot be granted for certain offences, like those involving large amounts of
drugs under the NDPS Act, 1985, unless certain conditions are met. Unlike the
erstwhile Code of Criminal Procedure, 1973, bail has now been defined under Section
2(b) of
the Bharatiya Nagarik Suraksha Sanhita, 2023. Section 37 of
the Narcotic Drugs and Psychotropic Substances Act, 1985, provides for the
grant of bail in NDPS cases, and it expressly excludes anything contained in
the erstwhile Code of Criminal Procedure, 1973 (now Bharatiya Nagarik Suraksha
Sanhita, 2023) related to the grant of bail involving offences under section 19
or section 24 or section 27A and also for offences involving commercial
quantity unless the embargo contained under section 37 is fulfilled. In cases
where the accused have been convicted by the Special NDPS Courts (hereinafter
referred to as 'Trial Courts') for the offences involving a commercial quantity
of narcotic drugs and psychotropic substances, upon preferring an appeal along
with an application for suspension of sentence and bail pending appeal, can the
sentence be suspended and can bail be granted by the High Courts? This is the
central point of discussion of this article. It is pertinent to mention here
that when an application seeking suspension of sentence is filed along with an
appeal and when the courts allow the suspension of sentence application, the
accused person is granted bail pending appeal. This is the normal rule, but
NDPS cases involving commercial quantities have different procedures to be
followed by the high courts while granting bail when the person has been
convicted.
The
Hon’ble apex court in the case of Dadu v. State of Maharashtra held
that Section 32-A of the NDPS Act, 1985 was ultra vires to the extent it took
away the powers relatable to Section 389 of the Code of Criminal Procedure,
1973 (Corresponding Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023).
Section 32-A does not in any way affect the powers of the authorities to grant
parole. It is unconstitutional to the extent it takes away the right of the
court to suspend the sentence of a convict under the Act. Nevertheless,
a sentence awarded under the Act can be suspended by the appellate court only
and strictly subject to the conditions spelt out in Section 37 of the Act, as
dealt with in this judgment. In the said case it was clearly observed that a
sentence awarded under the Act can be suspended by the appellate court only and
strictly subject to the conditions as spelt out in Section 37 of the Act.
In
the case of Rattan Kumar Vishwas vs. State of UP & Ors., the
Supreme Court held that a person convicted of an offence under Section 27A and
the Section 29of the NDPS Act should not be
released on bail unless the requirements outlined in Section 37 that
is, that there are reasonable grounds for holding that the accused is not
guilty of such an offence and that he is not likely to commit any offences while
on bail. The court also “noted that in order deal with the menace of
dangerous drugs flooding the market, Parliament has provided that a person
accused of offence under the Act should not be released on bail during trial
unless the mandatory conditions provided under Section 37 that there are
reasonable grounds for holding that the accused is not guilty of such offence
and that he is not likely to commit any offence while on bail are satisfied.”
Again,
the Hon’ble Supreme Court has considered and decided the aforementioned matter
in several cases. The Hon’ble Supreme Court ruled in Union of India v. Rattan Malik that
the NDPS Act especially section 37 requires the recording of satisfaction that
the accused is innocent and unlikely to commit any offence while on bail. The
apex court also held that “the broad principles which should weigh with the
court in granting bail in a non-bailable offence have been enumerated in a
catena of decisions of this Court and, therefore, for the sake of brevity, we
do not propose to reiterate the same. However, when a prosecution/conviction is
for offence(s) under a special statute and that statute contains specific
provisions for dealing with matters arising thereunder, including an
application for grant of bail, these provisions cannot be ignored while dealing
with such an application. As already noted, in the present case, the respondent
has been convicted and sentenced for the offences under the NDPS Act and
therefore, while dealing with his application for grant of bail, in addition to
the broad principles to be applied in prosecution for the offences under the
Penal Code, 1860 the relevant provision in the said special statute in this
regard had to be kept in view.”
In
the case of State (NCT of Delhi) v. Lokesh Chadha, the Hon’ble
Supreme Court ruled that when a suspension of sentence is requested under
Section 389(1) of the Code of Criminal Procedure, 1973 (Section 430 of BNSS,
2023) the High Court must be properly cognisant of the fact that the trial
judge found guilty at the end of the trial. The Court additionally noted that
although the High Court retains the authority to suspend the sentence, it may
do so for valid grounds that must relate to the public policy that underpins
the inclusion of Section 37 of the NDPD Act.
In
the recent case of State of Punjab vs. Sukhwinder Singh @ Gora (decided
on April 24, 2026), the Supreme Court ruled that the strictness of Section 37
of the NDPS Act cannot be compromised, even when considering the right to a
speedy trial under Article 21 of the Constitution. This ruling overturned the
High Court's order granting bail to an accused who had been found guilty of
offences covered by Sections 21(c) and 29 of the NDPDS Act. It has also been
decided that the twin requirements under Section 37(1) are required in cases
involving the recovery of contraband in commercial quantities. The
aforementioned judgment's paragraphs (9) and (10) are pertinent to the
situation and are reproduced as follows:
“9. The position of law on the grant of bail in
matters involving recovery of commercial quantity of contraband under the NDPS
Act is well settled. Section 37(1)(b)(ii) of the NDPS Act is cast in mandatory
terms. Where the Public Prosecutor opposes the application for bail, the Court
can enlarge an accused on bail only upon recording its satisfaction on two
cumulative conditions: first, that there are reasonable grounds for believing
that the accused is not guilty of the offence; and second, that the accused is
not likely to commit any offence while on bail. The recording of such
satisfaction is not a mere formality but a jurisdictional requirement. This
Court in Kashif (supra) has held, in plain terms, that the non-recording of the
twin satisfaction, being mandatory in nature, renders an order granting bail
unsustainable. A similar view has been expressed in Lalrintluanga Sailo (supra)
and Ajay Kumar Singh (supra).
10. When the impugned order is tested against that
settled position, it becomes apparent that paragraph 8 of the impugned order,
which carries the weight of the reasoning, does not contain a finding on either
of the twin conditions prescribed by Section 37(1)(b)(ii) of the NDPS Act. What
the High Court has, instead, proceeded on is the proposition that “the rigors
of Section 37 of the NDPS Act can be diluted bearing in mind the right to a
speedy trial”. The right to speedy trial under Article 21 of the Constitution
is undoubtedly a valuable constitutional guarantee; but in the context of a
special statute such as the NDPS Act dealing with commercial quantity, that
right has to be read alongside, and not in displacement of, the mandate of
Section 37. The omission to record the twin satisfaction prescribed by the
statute, it appears, may have escaped the attention of the High Court.”
Based
on the aforementioned law propounded by the Hon’ble Supreme Court, the Jammu
& Kashmir and Ladakh High Court, through Hon’ble Mr Justice Sanjay Dhar,
in the case of Bashir Ahmad Bhat versus the UT of Jammu and Kashmir CrlA(S)
19/2025, dismissed an application seeking suspension of sentence and grant of
bail involving a commercial quantity of NDPS. The Court also held that in cases
where an accused has been convicted of an offence under the Narcotic Drugs and
Psychotropic Substances Act, 1985 involving a commercial quantity of
contraband, the stringent conditions outlined in Section 37 of the Act cannot
be relaxed solely on the basis of long incarceration, and that recording
satisfaction on the twin conditions is a jurisdictional requirement rather than
a mere formality.
A
Bench of Mr. Hon’ble Justice Sanjay Dhar, while dismissing the application and
refusing to suspend the sentence, observed that,
“From an overall reading of the impugned judgment
passed by the learned Special Judge and the cursory look at the statements of
the prosecution witnesses, it cannot be stated that the appellant is not guilty
of the offences for which he has been convicted. Thus, the conditions
stipulated in Section 37 of the NDPS Act for grant of bail to the appellant are
not satisfied in the present case.”
Regarding
the appellant's claim of long detention of more than four years, the Court
concluded that mere fact of custody would not entitle him to release until it
is demonstrated that there is no prospect of his appeal being heard in the near
future. The Court noted that the appellant's lawyer was offered the option of
arguing the main appeal finally but requested time to do so, therefore it could
not be claimed that the constitutional right under Article 21 was breached. The High Court accordingly dismissed the
application, finding no value in it.
The
jurisprudence around suspension of sentence and bail in NDPS commercial
quantity cases remains firmly governed by the rigorous
standards set out in Section 37 of the NDPS Act, 1985. Despite the general
principle that bail is the rule and jail is the exception, the
legislature and the judiciary have carved out a clear, stringent exception for
offences involving commercial quantities of narcotic drugs and psychotropic
substances. As established by the Supreme Court of India and
reflected in several landmark decisions, including the recent State of
Punjab vs. Sukhwinder Singh @ Gora, the twin conditions of
Section 37 must be strictly adhered to, even at the appellate stage when
considering suspension of sentence or bail. The right to a speedy trial under
Article 21, while fundamental, does not override the express statutory mandate
of Section 37. High Courts are thus required to record a clear finding
on both twin requirements that there are reasonable grounds for believing
the accused is not guilty, and that the accused is not likely to commit any
offence while on bail before granting bail pending appeal. The consistent stand
taken by the apex court and various High Courts underscores the non-negotiable
nature of these conditions, reinforcing the legislature’s intent to combat
the grave threat posed by drug-related offences. In nutshell, NDPS
cases involving commercial quantities, the scope for suspension of sentence
and grant of bail at the appellate stage is narrow, strictly
circumscribed by Section 37, and demands a cautious, reasoned judicial
approach that balances individual rights with the larger public interest.
Umar
Bashir
Email Id: - umarb373@gmail.com,
M : 7006121252