Bail

Section 37 of the NDPS Act: why bail is harder in commercial-quantity cases

By Ankur Tripathi, Advocate · 26 October 2026 · 3 min read

Bail under the NDPS Act is not governed only by the ordinary rules. For serious cases, Section 37 adds a stricter test. Understanding it is the starting point for any NDPS bail strategy. This article explains it in plain terms and is general information, not legal advice.

What Section 37 says

Section 37(1)(b) of the NDPS Act provides that, for certain offences, a person accused cannot be released on bail unless two conditions are met:

1. The Public Prosecutor has been given an opportunity to oppose the bail application, and
2. Where the Public Prosecutor opposes, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that the accused is not likely to commit any offence while on bail.

These are known as the twin conditions. The section applies despite what the general bail provisions of the criminal procedure law say.

Which cases are covered

Section 37 applies to offences under Sections 19, 24 and 27A, and to offences involving commercial quantity. Where the quantity is small or intermediate, the stricter test does not apply, and the court applies the ordinary principles of bail, subject to the seriousness of the charge.

Why quantity is the first question

The classification of a case as small, intermediate or commercial depends on notified quantity tables, which differ for each substance. Disputes can arise over:

• The weight of the contraband and how it was measured
• Whether the quantity of the pure drug or of the whole mixture is relevant
• Whether the samples drawn were representative

A case that appears to be commercial quantity may fall below that threshold after a careful reading of the notification and the forensic report. This can change the whole bail picture.

What "reasonable grounds" means

Courts have said the standard is higher than a bare prima facie case, but it is not proof beyond reasonable doubt. The court looks at the material available at the bail stage to see whether the prosecution case is credible. Defects in the recovery or in procedure, and inconsistencies in the prosecution material, are the kind of point that can matter.

Delay and custody

Courts have in some cases granted bail even in Section 37 cases where the accused has spent a long period in custody and the trial is unlikely to conclude soon, relying on the right to a speedy trial under Article 21 of the Constitution. These decisions depend heavily on their facts, and they should not be treated as a general rule.

Practical points

• Collect the seizure memo, FIR, forensic report and any inventory or sampling proceedings early
• Check compliance with Sections 50, 42 and 52A of the Act
• Note the date of arrest, the custody period and the stage of trial
• Choose the forum with care, as the Special Court, Sessions Court and High Court each have a role

Related reading: Section 50: the right to be searched before a Gazetted Officer or Magistrate.

This article is for general information only. It is not legal advice, and the law and its interpretation change. Please consult an advocate about your specific facts before acting.

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