Introduction
Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is the provision that most often decides whether a person accused of a serious drug offence stays in custody until trial. It does not abolish bail. It adds two conditions that a court must be satisfied about, on top of the ordinary rules of bail, before it releases a person accused of an offence it covers. Courts call them the "twin conditions".
This guide explains when Section 37 applies, what the twin conditions require, which reasons courts have held insufficient, how procedural lapses and long custody enter the analysis, and how the section operates after conviction. It draws on Supreme Court and Rajasthan High Court judgments published on NyayVidhan, each cited with the Court's own paragraph numbers.
The Statutory Provision
Section 37(1), as amended by Act 9 of 2001 and quoted in full by the Supreme Court in Rattan Mallik (para 12), begins with a non-obstante clause that overrides the Code of Criminal Procedure. Clause (a) makes every offence under the Act cognizable. Clause (b) provides that no person accused of an offence punishable under Section 19, Section 24 or Section 27A, or of an offence 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, and (ii) where the Public Prosecutor opposes it, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Section 37(2) adds that these limitations are in addition to the limitations under the Code (now the BNSS) or any other law.
The Supreme Court has confirmed that the Section 37(1)(b) conditions apply in addition to the limitations under Section 439 of the Code (NCB v. Mohit Aggarwal, (2022) 18 SCC 374, para 11), and that the bail provisions of a special statute such as the NDPS Act cannot be ignored when deciding bail or suspension of sentence (Union of India v. Rattan Mallik, (2009) 2 SCC 624, para 11).
When Section 37 Applies, and When It Does Not
Commercial quantity and the listed offences. The bar applies to offences involving commercial quantity and to offences under Sections 19, 24 and 27A. In State of West Bengal v. Rakesh Singh (2022 INSC 691) the Supreme Court applied Section 37's rigours to a Section 27A charge of financing and harbouring (para 13).
The offence the material discloses, not the sections invoked. Before applying Section 37, the court must see what offence the material prima facie discloses. In Ragini Dwivedi v. State of Karnataka (2021 INSC 38), no drugs were recovered and the material showed at most consumption punishable under Section 27; Section 37 could not be invoked and bail had to follow (paras 6-8).
Cultivation. Section 18(c) prescribes no threshold quantity, so neither the number nor the weight of poppy plants brings a cultivation charge within Section 37; anticipatory bail remains available unless a special statute expressly bars it (S. v. State of Rajasthan, 2025:RJ-JD:27658, para 13).
Who decides the quantity. A seizure officer's opinion on the nature of a drug is not expert evidence; the FSL report decides the classification and, with it, whether the 60-day or the 180-day investigation period applies (Dheeraj Singh Parmar v. State of Rajasthan, 2025:RJ-JP:7541, paras 6, 9-10). For LSD on blotter paper, the Rajasthan High Court relied on the Bombay High Court Full Bench view that the combined weight decides small or commercial quantity, and applied Section 37 at the bail stage (Hitanshu Sankhla v. Union of India, 2025:RJ-JP:43143, paras 3, 5).
The Twin Conditions: What "Reasonable Grounds" Means
Both conditions, recorded. The twin conditions are cumulative; satisfaction on both is a sine qua non for bail (Rattan Mallik, para 13; State of Meghalaya v. Smt. X, 2024 INSC 537, paras 5-8). An order that does not record the Section 37 finding cannot stand (State of Kerala v. Rajesh, 2020 INSC 88, paras 22, 26).
More than prima facie. "Reasonable grounds" means more than prima facie grounds: substantial probable causes for believing that the accused is not guilty (Rattan Mallik, para 13; Rajesh, para 21; Union of India v. Md. Nawaz Khan, 2021 INSC 526, para 19). In Mohit Aggarwal the Court described them as credible and plausible grounds to believe the accused is not guilty, coupled with satisfaction that he is unlikely to offend on bail (para 14).
Not a finding of innocence. The court does not record a finding of "not guilty"; its satisfaction is for the limited purpose of bail (Rattan Mallik, para 14), and it need not weigh the evidence at that stage (Mohit Aggarwal, para 15). In Mohd Muslim v. State (NCT of Delhi) (2023 INSC 311) the Court said the satisfaction is only a prima facie determination on a broad reading of the material, and that a literal reading of Section 37 would exclude bail altogether and result in punitive and preventive detention (paras 18-20). The Rajasthan High Court has applied the same view: Section 37 calls for a prima facie assessment and cannot be read to make bail impossible (Pappulal v. State of Rajasthan, 2026:RJ-JD:5293, paras 22-23).
Reasons Courts Have Held Insufficient
- Parity alone. There is no parity where the order relied on did not apply Section 37 (Satpal Singh v. State of Punjab, 2018 INSC 277, para 2). Bail to co-accused does not absolve an accused from the rigour of Section 37 (Rajesh, para 23), and a person found in conscious possession of commercial quantity cannot claim parity with released co-accused (State (NCB) v. Pallulabid Ahmad Arimutta, 2022 INSC 26, para 11).
- An order that only records submissions. Merely recording the parties' submissions shows no judicial application of mind; an order unaware of Section 37's norms is a serious infraction, and an accused's education is an extraneous ground (Union of India v. Prateek Shukla, 2021 INSC 165, paras 11-12).
- No recovery from the person. The absence of contraband on the accused's person does not dispense with the Section 37 scrutiny where it is concealed in the vehicle he travels in (Md. Nawaz Khan, para 25).
- Custody period or charge-sheet, by themselves. The length of custody, the filing of the charge-sheet or the start of the trial are not by themselves grounds for bail under Section 37 (Mohit Aggarwal, para 18). Three years in custody, an unlikely early hearing and nothing found on the accused did not satisfy Section 37 in Rattan Mallik (para 15).
- Medical status alone. HIV-positive status alone cannot justify bail in a commercial-quantity case, though the trial must be taken up on priority under Section 34(2) of the HIV and AIDS Act (State of Meghalaya v. Smt. X, paras 10, 12-13).
- Delayed Section 52A compliance alone. Delay or non-compliance with Section 52A is a procedural irregularity that does not by itself entitle the accused to bail; Section 37's twin findings remain mandatory (NCB v. Kashif, 2024 INSC 1045, paras 8, 11, 39).
- A later similar arrest. An accused's later arrest in a similar NDPS case weighed decisively in setting aside his bail (State of Jharkhand v. Sunny Kumar, 2025 INSC 153, paras 5-6).
When the Prosecution's Own Case Supplies "Reasonable Grounds"
Section 67 statements. After Tofan Singh, Section 67 statements are inadmissible at trial. Bail will not be cancelled where the prosecution's case rests on them (Pallulabid Ahmad Arimutta, para 10). But other circumstantial evidence, such as disclosures leading to recovery and call detail records, can still weigh against bail (Mohit Aggarwal, paras 16-17; State of Rajasthan v. Shyam Sundar Mundara, paras 20-22).
A charge-sheet that contradicts the FIR. In Rakesh Singh, the charge-sheet's story contradicted the prosecution's initial complaint and pointed to planting; the Supreme Court upheld bail despite the accused's antecedents (paras 16-19).
Section 42 breaches. Total non-compliance with Section 42, together with long custody not caused by the accused, satisfied Section 37 in Arjun v. State of Rajasthan (2026:RJ-JP:31367, paras 6-8). Where the grounds were recorded before a night search and sent to the superior within 72 hours, there was prima facie compliance and bail was refused (Nand Kishore v. State of Rajasthan, 2026:RJ-JD:42813, paras 12-17). Delayed compliance with a satisfactory explanation is acceptable (Md. Nawaz Khan, paras 27-28).
Sampling under the 2022 Rules. Prima facie non-compliance with the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022, which require samples to be drawn in a Magistrate's presence, justified bail in a 248 kg poppy husk case (Pappulal, paras 10, 16, 22-24). This sits alongside Kashif, where the Supreme Court held that delayed Section 52A compliance alone is not a ground for bail.
Long Custody, Slow Trials and Article 21
Grant of bail for undue delay in trial is not fettered by Section 37, given Section 436A, and stringent bail laws are justified only if trials conclude speedily (Mohd Muslim, paras 13-15, 20, 23). Recent Supreme Court orders have granted bail weighing custody and trial delay: almost two years in custody with the trial not begun (Vishwanathan v. State of Tamil Nadu, paras 8-12); the custody period and likely trial length, read with Article 21 and the principle of Section 37 (Nishant Pal v. State of Haryana, para 5); and a defective arrest memo with nearly a year in custody before charges were framed (Debansu Sarkar v. State of Odisha, paras 8-11).
The limit is equally clear. In State of Punjab v. Balraj Singh (2026 INSC 618) the Supreme Court cancelled bail granted without the twin conditions and held that 1 year 7 months of custody, against a 20-year maximum sentence, was not prolonged incarceration under Article 21. As reported there, the broader Article 21 question has been referred to a larger bench in Tasleem Ahmed v. State (NCT of Delhi).
After Conviction: Suspension of Sentence
Section 37 also governs bail pending appeal. Section 32A is unconstitutional to the extent it takes away an appellate court's power to suspend a sentence, but the court may suspend an NDPS sentence only strictly on Section 37's conditions (Dadu v. State of Maharashtra, (2000) 8 SCC 437, paras 25-27, 29). Suspension must record satisfaction on both conditions; custody and appeal delay alone do not suffice (Rattan Mallik, paras 13-15). Yet there is no rule that half the sentence must be served first, and where much of a fixed-term sentence has been served and the appeal will not be heard before it ends, refusing bail only under Section 37 violates Article 21 (NCB v. Lakhwinder Singh, 2025 INSC 190, paras 5-7).
Practical Points
- Identify first whether the material prima facie discloses an offence Section 37 covers: commercial quantity (on the FSL report), or Sections 19, 24 or 27A (Ragini Dwivedi; Dheeraj Singh Parmar; S. v. State of Rajasthan).
- A bail order in a covered case must address both conditions and record the satisfaction; parity, education, medical status or recorded submissions alone will not sustain it (Rattan Mallik; Satpal Singh; Prateek Shukla; Smt. X).
- Grounds that have succeeded are anchored in the prosecution's own record: contradictions between FIR and charge-sheet, total Section 42 non-compliance, or sampling outside the 2022 Rules (Rakesh Singh; Arjun; Pappulal).
- Delay arguments carry weight when custody is long, the trial has not begun and the delay is not the accused's, but short custody against a long maximum sentence has been held insufficient (Mohd Muslim; Vishwanathan; Balraj Singh).
- At the appellate stage, Section 37 applies to suspension of sentence, subject to Article 21 where the appeal will outlast the sentence (Dadu; Lakhwinder Singh).
Section 37 Judgments on NyayVidhan
All judgments above, with their full summaries, are listed on the Section 37 case-law page and under the topic Twin Conditions for Bail (NDPS). Related guides: Section 52A, Section 42, Section 50 and commercial quantity.
This guide summarises judgments for general information; it is not legal advice. Read the full judgment before relying on any proposition.
