Introduction
The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), was enacted to combat drug trafficking and abuse through stringent provisions. Section 37, in particular, makes the grant of bail exceptionally difficult in cases involving commercial quantities of narcotics. At the same time, Article 21 of the Constitution of India guarantees the fundamental right to life and personal liberty, which the Supreme Court has consistently interpreted to include the right to a fair and speedy trial.
This raises a recurring constitutional question: Can the right to liberty and speedy trial under Article 21 justify the grant of bail even when the twin conditions of Section 37 are not fully satisfied?
Section 37 of the NDPS Act
Section 37 classifies offenses involving commercial quantities as cognizable and non-bailable. It imposes two cumulative “twin conditions” that must be satisfied before bail can be granted:
- The Public Prosecutor must be given an opportunity to oppose the application; and
- Where opposed, the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offense and is not likely to commit any offense while on bail.
In practice, forming a positive opinion of innocence at the pre-trial stage is extremely difficult. As a result, pre-trial custody has become the norm and bail the rare exception in commercial-quantity cases.
Article 21 of the Constitution
Article 21 provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Judicial interpretation has expanded its content to include:
- Personal liberty as a core fundamental right;
- The right to a speedy trial as an integral component of fair procedure; and
- The principle that pre-trial detention is intended only to secure the presence of the accused and not to serve as punishment.
When trials remain stalled for years, continued incarceration without conviction acquires a punitive character and violates Article 21.
The Constitutional Tension
Statutory restrictions such as Section 37 bind ordinary criminal courts. They do not, however, oust the jurisdiction of constitutional courts to protect fundamental rights. The Supreme Court has repeatedly held that the rigours of special-statute bail bars (including Section 37 NDPS and Section 43-D (5) UAPA) “melt away” when the period of incarceration becomes unreasonably long and there is no realistic prospect of the trial concluding within a reasonable time.
The practical approach that has emerged may be summarized as follows:
Commercial Quantity NDPS Case: Legal Position on Bail
| Commercial Quantity NDPS Case | Legal Position on Bail |
|---|---|
| Section 37 does not apply. | Bail may be considered on ordinary legal principles. |
| Section 37 applies, but the trial is unduly delayed and incarceration is prolonged. | Article 21 and the right to speedy trial may justify bail, depending on the facts of the case. |
| Section 37 applies, and there is no undue delay or prolonged incarceration. | Bail is ordinarily refused, subject to the stringent conditions under Section 37. |
Key Judicial Positions
The jurisprudence reflects a careful balance rather than an absolute hierarchy.
Union of India v. K.A. Najeeb
In Union of India v. K.A. Najeeb [(2021) 3 SCC 713], a three-judge bench held that statutory restrictions on bail do not oust the jurisdiction of constitutional courts under Article 21. The Court observed that the rigors of provisions such as Section 37 NDPS or Section 43-D (5) UAPA “melt away” when trial completion within a reasonable period is unlikely and the period of incarceration has become unreasonably long.
Muslims @ Hussain and Rabi Prakash
In Muslim @ Hussain v. State (NCT of Delhi) [(2023) 18 SCC 166] and Rabi Prakash v. State of Odisha [2023 SCC OnLine SC 1109], the Supreme Court affirmed that prolonged detention and inordinate trial delays can justify bail under Article 21, holding that the constitutional right to a speedy trial must be given due weight when pre-trial custody begins to resemble punitive detention.
Nitish Adhikary and Naeem Ahmed
Subsequent decisions such as Nitish Adhikary @ Bapan v. State of West Bengal [2022 SCC OnLine SC 2068] and Naeem Ahmed @ Naim Ahmad v. Govt. of NCT of Delhi [2024 SCC OnLine SC 220] granted bail primarily on the ground of lengthy custody (approximately 1 year 7 months to nearly 2 years) coupled with negligible trial progress and absence of criminal antecedents.
Anjali Mondal v. State of West Bengal
High courts have followed the same line in appropriate cases. In Anjali Mondal v. State of West Bengal [CRM (NDPS) No. 1606 of 2024], the Calcutta High Court granted bail after noting custody of over one year and three months, non-commencement of evidence despite sixteen charge-sheeted witnesses, and no immediate prospect of conclusion of trial.
Narcotics Control Bureau v. Kashif
On the other hand, the Supreme Court has simultaneously emphasized that Section 37 remains mandatory. In Narcotics Control Bureau v. Kashif [(2024) 11 SCC 372], the Court reiterated that refusal of bail is the rule and the grant of the exception in commercial-quantity cases, and that courts must record the specific cumulative satisfaction required by the twin conditions.
State of Punjab v. Sukhwinder Singh and State of Punjab v. Balraj Singh
More recently, in State of Punjab v. Sukhwinder Singh @ Gora [2026 SCC OnLine SC 671] and State of Punjab v. Balraj Singh @ Billa [2026 SCC OnLine SC 1058], the Supreme Court set aside High Court bail orders, holding that the twin conditions cannot be diluted or ignored solely on the ground of trial delay or a custody period of around one year and seven months when the offense carries a maximum sentence of twenty years. The Court underscored that Article 21 and Section 37 must be read harmoniously.
Calcutta High Court on Prolonged Incarceration
Consistent with this approach, the Calcutta High Court (Circuit Bench at Jalpaiguri) in CRM (NDPS) 388 of 2026 and connected matters declined bail where custody ranged from 1 year 4 months to 2 years 1 month, observing that such periods did not constitute “prolonged incarceration” relative to the statutory sentencing range of 10–20 years.
Prolonged Incarceration Is a Fact-Specific Inquiry
These decisions collectively demonstrate that while Article 21 remains the ultimate constitutional safeguard, the length of custody, the stage of the trial, the reasons for delay, the role of the accused, and criminal antecedents are all relevant. “Prolonged incarceration” is a fact-specific inquiry; there is no fixed numerical threshold.
Conclusion
Section 37 of the NDPS Act applies with full force at the outset of commercial-quantity prosecutions and continues to govern ordinary applications for bail. It is a deliberate legislative choice aimed at deterring serious drug offenses.
At the same time, Article 21 operates as a constitutional check against indefinite pre-trial detention. When trials stagnate for years and under-trial prisoners languish without a realistic prospect of early conclusion, continued custody ceases to be a legitimate incident of the criminal process and becomes punitive. In such circumstances, constitutional courts retain the power to grant bail in the interest of personal liberty.
The settled position, therefore, is one of harmonious construction: statutory restrictions under Section 37 must be respected, but they cannot be permitted to eclipse the fundamental right to life and personal liberty when pre-trial detention itself becomes constitutionally impermissible.
