Commercial Quantity NDPS Bail and the Section 37 Test

What does section 37 of the NDPS Act actually say?

Section 37 opens with a non obstante clause, so it overrides the BNSS. It makes every NDPS offence cognizable, and then provides that a person accused of an offence under section 19, 24 or 27A, or of an offence involving commercial quantity, shall not be released on bail unless two things happen. First, the public prosecutor must have been given an opportunity to oppose the application. Second, where the prosecutor opposes, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and 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 BNSS. So the ordinary considerations, such as flight risk and tampering, still apply on top of the twin conditions. A court that grants bail in a commercial quantity case must record its satisfaction on both conditions; an order that does not is vulnerable to being set aside, and the Supreme Court has set aside High Court bail orders on exactly that ground more than once.

Which NDPS cases attract section 37?

The obvious category is commercial quantity: for example, 20 kg or more of ganja, 1 kg or more of charas, 250 grams or more of heroin, 100 grams or more of cocaine, or 10 grams or more of MDMA. The weight is of the whole mixture, including neutral substances, after Hira Singh v Union of India (2020). The other categories are less common: section 19 (embezzlement of opium by a licensed cultivator), section 24 (external dealings in drugs in contravention of the Act) and section 27A (financing illicit traffic or harbouring offenders).

Difficult cases arise where several people are arrested together. If 22 kg of ganja is recovered from a car with three occupants, the prosecution will attribute the entire quantity to each of them, and section 37 then applies to all three. Whether a passenger in the back seat was in conscious possession of bags in the boot is a real question, but the court will only accept it at the bail stage if something in the record supports it. Similarly, section 29 (abetment and conspiracy) is often used to link a person with a small recovery, or none, to a commercial seizure elsewhere.

What does 'reasonable grounds for believing he is not guilty' mean?

It means more than a prima facie case for the defence, but far less than proof of innocence. The Supreme Court in Union of India v Shiv Shanker Kesari (2007) and State of Kerala v Rajesh (2020) explained that the court does not record a finding of not guilty at the bail stage. It asks whether there are substantial, probable grounds on the material before it to believe the accused is not guilty. The court does not weigh the evidence as at trial, but it does look closely at the record.

In practice, this means the application must point to something concrete in the prosecution's own papers. A general claim of false implication does not meet the test. A seizure memo that contradicts the arrest memo on time, a weight that falls below 20 kg once the gunny bags are excluded, a section 50 notice that was defective in a personal search, or a total absence of material linking the applicant to the contraband: those are the kinds of grounds courts accept.

The second condition, that the accused is not likely to commit an offence on bail, is assessed mainly from antecedents. Previous NDPS cases, especially pending ones, are the biggest obstacle. A clean record, a settled family life and a lawful occupation help, but they speak only to the second condition, not the first.

The two conditions and what speaks to each

A useful way to prepare is to sort every piece of material in the file under one of the two conditions.

Where do reasonable grounds usually come from? The quantity and the link

The quantity is the first place to look. Even after Hira Singh, the defence can show that packaging was weighed, that separate recoveries from different places or persons were clubbed together without basis, or that the weighing scale and method were not recorded. In ganja cases, the statutory definition excludes seeds and leaves not accompanied by the flowering or fruiting tops, and wet material weighed at seizure loses weight later. A case recorded at 21 kg that is really 18 kg is not a commercial quantity case at all, and section 37 falls away.

The second place is the link between the applicant and the contraband. Possession under the NDPS Act means conscious possession, and the Act lets the court presume it once possession is shown (sections 35 and 54), so the defence has to show why possession itself is doubtful. Recovery from a shared house, a hired vehicle, a parcel addressed to a name with no other connection to the applicant, or a bag in a bus luggage hold: these raise genuine questions. Where the only link is a phone number in a co-accused's contacts or a statement recorded by the investigating agency, the link is thin.

When Advocate B.K. Singh reads a commercial quantity file for bail, he lays the seizure memo, the arrest memo, the sample inventory and the FSL forwarding letter side by side and checks every time, weight and seal number against the others. Inconsistencies between documents written by the same officers on the same day are among the strongest points available at the bail stage, because they do not depend on anyone's word.

Procedural safeguards that matter at the bail stage

Courts do not decide these questions finally at the bail stage, but a clear breach visible on the record can supply reasonable grounds under section 37.

Do statements to NCB or police officers count after Tofan Singh?

Not as confessions. In Tofan Singh v State of Tamil Nadu (2020), the Supreme Court held that officers invested with powers under the NDPS Act are police officers for the purpose of the bar on confessions to police, and that a statement recorded under section 67 cannot be used as a confession to convict. The same reasoning reduces the value of a co-accused's statement naming the applicant.

This matters most in cases built from the outside in: one person is caught with contraband, names a supplier, and the supplier is arrested from home with nothing recovered. If the investigation has produced nothing independent, such as money transfers, recovered phones with relevant chats, or a controlled delivery, the court may find reasonable grounds to believe the supplier is not guilty. The status report will try to show independent material, so the reply has to deal with each item it lists.

Long custody and Article 21: bail despite section 37

Section 37 cannot justify indefinite detention. In Union of India v K.A. Najeeb (2021), a UAPA case, the Supreme Court held that statutory restrictions on bail do not oust the constitutional courts' power to grant bail where the right to a speedy trial under Article 21 has been violated. In Mohd. Muslim v State (NCT of Delhi) (2023), the Court applied the same principle to an NDPS commercial quantity case and granted bail to an accused who had spent several years in custody with the trial far from complete.

No fixed period triggers this. Courts look at how long the accused has been in custody compared with the minimum sentence of ten years, how many prosecution witnesses remain, how often the trial has been adjourned and why, and whether the delay is attributable to the accused. A record of the order sheets showing the dates on which witnesses did not appear is often the most useful annexure in such an application.

BNSS section 479 also applies: an undertrial must generally be released after serving half the maximum sentence, and a first-time offender after one third. With a 20-year maximum, that takes a long time in commercial quantity cases, so the Article 21 argument usually arises well before section 479 does. Our post on release of undertrials under section 479 BNSS covers the calculation.

Default bail at 180 days and the extension to one year

In commercial quantity cases, and for sections 19, 24 and 27A, section 36A(4) replaces the 90-day limit for completing investigation with 180 days. The special court can extend it up to one year, but only on a report of the public prosecutor indicating the progress of investigation and the specific reasons for continued detention. A bare request from the investigating officer is not enough, and the accused must be told and heard on the extension.

If the chargesheet is not filed within the time allowed, and no valid extension has been granted, the accused has an indefeasible right to default bail, and section 37 does not stand in the way. The right must be claimed by filing an application before the chargesheet is filed. Families should mark the 180th day on a calendar from the date of first remand. The mechanics are covered in our post on default bail when the chargesheet is not filed in time.

Preparing a section 37 bail application, step by step

A rejected application is recorded in the next one, so it pays to file once, properly.

1. Get the full record

   Obtain the FIR, arrest memo, seizure memo, section 50 notice, section 52A papers, remand orders and, once available, the FSL report. After the chargesheet, apply for copies of the entire chargesheet and documents relied on.

2. Recalculate the quantity

   Check the weight of each packet, the packing and the method of weighing. Compare the seizure memo with the inventory and the FSL report. If the real figure is below the commercial line, that becomes the lead ground.

3. Map the link

   List every item the prosecution relies on to connect the applicant to the contraband, and note what each one actually proves. Separate admissible material from statements to officers.

4. Check procedure

   Identify the search provision used (section 42 or 43), whether section 50 applied, and when sampling was done. Note only clear breaches; weak procedural points dilute strong ones.

5. Build the second condition

   Collect proof of residence, work, family and the absence of other cases. If there are other cases, get their status and orders.

6. Draft and file

   File before the special NDPS court with page references for every ground. Serve the public prosecutor, since section 37 requires an opportunity to oppose.

7. Answer the status report

   Read the investigating officer's report carefully and answer each point on the next date, with documents if possible. Courts notice when a reply engages with the status report and when it does not.

What does the prosecutor's reply usually say, and how do you answer it?

The status report in a commercial quantity case typically recites the recovery, states that the quantity is commercial, mentions call detail records showing contact with other accused, lists any previous cases, and adds that investigation is continuing to trace the source and the buyers. It often ends with a general statement that the accused may abscond or tamper with evidence.

Each of these needs a specific answer. Contact with a co-accused means little if both live in the same locality or work together. Previous cases need their status: an acquittal or discharge is not an antecedent. The claim that investigation is continuing does not justify custody where the contraband and samples are already secured. And the absconding risk can be met with a passport deposit and local sureties. A reply that answers the report point by point is far more persuasive than one that repeats the bail application.

Interim and medical bail in commercial quantity cases

Courts do grant short interim bail in commercial quantity cases for serious medical treatment, the death or grave illness of a close family member, or a wedding in the immediate family. The period is usually short, a few days to a few weeks, and the order is conditioned on surrender on a fixed date. The jail medical record and hospital papers must be placed on record; claims without documents are rejected quickly.

Interim bail is not a back door around section 37, and courts are alert to repeated applications. But good conduct during interim bail, with surrender on time, is something the court can consider later when regular bail is argued, particularly on the second condition.

Bail from the High Court, and the risk of cancellation

If the special court refuses bail, the next step is an application under BNSS section 483 before the Delhi High Court, or the Allahabad High Court for Noida and Ghaziabad cases. NCB matters from Delhi go to the Delhi High Court. The High Court applies the same section 37 test but often looks at the record more closely, and long custody arguments are more commonly accepted there.

A bail order in a commercial quantity case is more exposed than most. The state or the NCB can challenge it, and the Supreme Court has set aside orders that granted bail without recording satisfaction on the twin conditions. So the application should ask the court to record its reasons on each condition, and the accused must observe every condition strictly. Our post on when bail can be cancelled explains what to do if cancellation is sought.

Papers a section 37 bail file needs

Arguments that rarely work under section 37

• False implication, stated generally. Without a specific basis in the record, the court treats it as a denial, which is not enough.
• Age, health or being the family's sole earner. These matter for interim bail and for conditions, but do not satisfy the first condition.
• The co-accused got bail. Parity helps only if the role and the material against both are the same.
• The FSL report has not come. Pending reports rarely help unless there is a real doubt about the substance or the weight.
• Every procedural point at once. Ten weak objections bury the one strong one. Choose.

Anticipatory bail in commercial quantity cases

The section 37 bar applies to anticipatory bail as well, so a person who fears arrest in a commercial quantity case must meet the twin conditions under BNSS section 482. Such applications most often succeed where nothing was recovered from the applicant and the case against them rests on a co-accused's statement or on phone contact that has an innocent explanation. Where recovery has been made from the applicant's property, anticipatory bail is unusual. The procedure is explained in our post on anticipatory bail in Delhi under section 482 BNSS.

Before the first section 37 bail hearing

• Confirm the drug, the recorded weight and the commercial threshold for it.
• Check whether packaging was weighed with the contraband.
• Note the search provision used and whether section 50 was relevant.
• Find out when samples were drawn and whether a magistrate was present.
• Collect the status and orders of any other case against the accused.
• Gather residence, work and family documents for the second condition.
• Mark the 180th day from first remand for default bail.
• Prepare a surety with complete documents in case bail is granted.

How we approach commercial quantity bail

Section 37 cases are slow, document-heavy work, and we prefer to wait a few days to get the record right rather than file a thin application that has to be explained away later. Advocate B.K. Singh usually decides the lead ground only after the quantity has been recalculated and the link mapped, because those two exercises tell you whether the case is about the first condition at all or really about long custody. Advocate Sadhna Singh keeps families informed of dates and gathers the documents for the second condition.

More on how we handle bail across Delhi NCR is on our bail practice page and our page on criminal law practice. If you want an advocate to read the seizure papers and tell you which route to bail is realistic, the team at B.K. Singh & Associates can review them through our online enquiry page.