Why NDPS Bail Is So Hard: Section 37 Twin Conditions

Your son was picked up on a Tuesday night. By Friday the lawyer says the words commercial quantity, and nobody will promise you bail any more. That one phrase is doing all the work, and it comes from Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Here is the short answer. Section 37 makes every offence under the NDPS Act cognizable and non-bailable. On top of that, for one specific group of cases, it adds two more conditions the court must clear before it can release anyone. Those are the twin conditions, and they do not apply to every drug case. Which group your case falls into is the most important fact in the file, and most families are never told it plainly.

That clause is awkwardly drafted. The words “and also” do not mean you need a Section 19, 24 or 27A charge and a commercial quantity before the twin conditions apply. Courts read the clause as covering both limbs separately: those three named offences whatever the weight, and any offence involving commercial quantity. Section 36A(4), dealing with the investigation period, uses the plain word “or” for exactly the same list.

The NDPS Act does not treat all seizures alike. Section 2(viia) defines commercial quantity as any quantity greater than the quantity the Central Government specifies by notification, and Section 2(xxiiia) defines small quantity as any quantity lesser than that notified figure. Neither number sits inside the Act. Both come from a notification table, drug by drug.

That creates three bands, the middle one being what courts call intermediate quantity. Sections 20 and 21 punish the three bands very differently, and Section 37 bites only on the top band plus three named offences.

The High Court of Himachal Pradesh put the middle band bluntly in Sandeep Kumar versus State of Himachal Pradesh, decided 22 July 2024, holding that where the contraband “is to be considered as intermediate quantity, therefore, rigours of Section 37 of the Act are not attracted”.

One warning before you celebrate a small figure. In Hira Singh versus Union of India, decided 22 April 2020, the Supreme Court held that where a drug is seized as a mixture, the quantity of the neutral substances “is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug”. A few grams of powder cut into a kilo of filler is weighed as a kilo. Courts have also added up recoveries from people travelling together and treated each as possessing the total.

The second twin condition sounds impossible: how can a court believe an accused is not guilty before the trial? The Supreme Court answered that in Union of India versus Shiv Shanker Kesari, decided 14 September 2007, reported at (2007) 7 SCC 798. Reasonable grounds “means something more than prima facie grounds”, and connotes “substantial probable causes for believing that the accused is not guilty of the offence charged”. The court is not recording an acquittal. It is doing a limited exercise, for bail only.

The two limbs are not alternatives. In State of Meghalaya versus Lalrintluanga Sailo, 2024 INSC 537, decided 16 July 2024, the Supreme Court restated that they “are cumulative and not alternative”, and that “in case one of the two conditions thereunder is not satisfied the ban for granting bail would operate”.

1. First production before the Special Court constituted under Section 36, which exercises a Magistrate's powers over remand.
2. Bail application to that Special Court, with the case number, the seizure memo particulars and the exact weight as recorded.
3. Notice to the Public Prosecutor. Not a formality. The first twin condition is that the prosecutor gets an opportunity to oppose, and an order passed without it is open to attack later.
4. Hearing on reasonable grounds. The defence points to the material that undercuts the case, the prosecutor to what supports it.
5. A reasoned order. In a commercial quantity case the judge must record satisfaction on both limbs. A one line order either way is weak and appealable.
6. High Court if refused. Section 36A(3) preserves the special powers of the High Court regarding bail, reading Magistrate as including a Special Court. The Section 37 test travels with the case.

Delay and the time already served. The strongest real world lever. In Mohd Muslim alias Hussain versus State NCT of Delhi, decided 28 March 2023, the Supreme Court held that “grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act”. The Court treated keeping an accused in custody while the trial crawls as contrary to the spirit of Article 21 and of the speedy trial provisions. That appellant had been inside over 7 years and 4 months. In Rabi Prakash versus State of Odisha, decided 13 July 2023, on 247 kg of ganja, over three and a half years in custody and one of nineteen witnesses examined, the Court said “the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act”.

Do not oversell it. On 13 November 2025, in Union of India versus Vigin K. Varghese, 2025 INSC 1316, the Supreme Court set aside two Bombay High Court bail orders in a commercial quantity case because the High Court had leaned on delay without the “careful appraisal of the material available” that Section 37 demands. Delay is an argument, not a switch.

Defects in the personal search. Section 50 says that when an empowered officer is about to search a person, he shall, if that person so requires, take him without unnecessary delay to the nearest Gazetted Officer or Magistrate. In State of Punjab versus Baldev Singh, decided 21 July 1999, the Supreme Court held it is “imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50”, and that failure to inform “would amount to non-compliance of Section 50 which is mandatory”. The same judgment fixes the limit: Section 50 “would come into play only in the case of a search of a person as distinguished from search of any premises etc”. A bag, a car boot or a room falls under Sections 41 to 43 instead. Alongside it, check the paper trail: Section 42(2) and Section 50(6) each require the officer to send a copy of the recorded information or grounds of belief to his immediate official superior within seventy two hours.

Section 52A sampling. Section 52A(2) requires an inventory and an application to a Magistrate to certify it, photograph the seizure and allow representative samples to be drawn. In Union of India versus Mohanlal, decided 28 January 2016, the Supreme Court said “the process of drawing of samples has to be in the presence and under the supervision of the Magistrate”. Read the sequel too. In Narcotics Control Bureau versus Kashif, 2024 INSC 1045, decided 20 December 2024, the Court held any lapse or delayed compliance “would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone”.

Statements recorded by the officers. Many NDPS files rest on a signed statement. In Tofan Singh versus State of Tamil Nadu, decided 29 October 2020, the Supreme Court held that officers with powers under Section 53 “are police officers within the meaning of section 25 of the Evidence Act”, so a confession to them “cannot be taken into account in order to convict an accused”, and “a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial”.

Default bail when the chargesheet is late. A right, not a discretion. For persons accused under Sections 19, 24 or 27A or of offences involving commercial quantity, Section 36A(4) converts the ninety day limit in Section 167(2) of the old Code into “one hundred and eighty days”, and lets the Special Court extend that to one year on a Public Prosecutor report giving the progress of investigation and specific reasons for further detention. Outside that list the ordinary clock runs: Section 187(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 allows ninety days where the offence carries death, life or ten years or more, and sixty days otherwise. Our page on default bail and BNSS Section 479 walks through the counting.

• The seizure memo, with the exact weight, the packing and the panch witness names.
• The arrest memo and grounds of arrest, with date and time.
• The Section 50 notice or consent memo, if the person was searched.
• The Section 42 information or grounds of belief, and proof it reached the superior in seventy two hours.
• The Section 52A application and Magistrate certification, plus the sample list.
• The FSL report, and whether it covers the whole seizure or only a part.
• The custody certificate from the jail, which is what actually proves days served.

Dinesh Kharwar, 24, is caught on a bus with 3.2 kg of ganja. For ganja the notification table sets small quantity at 1,000 grams and commercial quantity at 20 kilograms, so 3.2 kg is intermediate quantity. The charge is Section 20(b)(ii)(B), punishable up to 10 years, and the twin conditions are not attracted. His sister files before the Special Court on ordinary principles. A real fight, but a normal one.

Change one figure. If the bus carried 24 kg, the seizure crosses 20 kg, the charge becomes Section 20(b)(ii)(C), and the twin conditions switch on. The chargesheet clock changes too: instead of ninety days the agency gets one hundred and eighty under Section 36A(4), extendable to a year. A family that files for default bail on day 91 in a commercial quantity case will simply lose it.

• Assuming Section 37 applies to every drug case. Ask the lawyer to put the exact notified small and commercial figures for that drug on the record.
• Filing a default bail application on the wrong day. In commercial quantity cases the number is one hundred and eighty days, not ninety.
• Waiting for the FSL report before applying for bail. The clocks run whether or not the report has come.
• Treating a Section 52A lapse as automatic bail. After the Kashif judgment of 20 December 2024 it is a procedural irregularity, not a passport.
• Arguing Section 50 when nothing was taken off the person. If the recovery was from a bag or a vehicle, Section 50 does not apply at all.
• Not getting a custody certificate. Delay arguments need proof of days served, not an estimate.

An RTI application will not get you bail, and it will not get you the case diary. But the police station, the excise department and the state Forensic Science Laboratory are public authorities under the Right to Information Act, 2005, and some of what they hold is ordinary administrative record rather than investigation material.

• Ask the FSL for turnaround statistics: NDPS samples pending as on a date, and average time to report. That is a departmental record, and useful evidence of systemic delay when you argue Article 21.
• Ask the department for the notification empowering the seizing officer under Section 42. Empowerment is published, not secret.
• Ask through the registry for your own custody and remand record. Our guide on RTI for bail and custody records sets out what is disclosable.
• Expect refusals under Section 8(1)(h) for anything that would impede an ongoing investigation, and do not fight that on a bail timeline. Check replies against the PIO Reply Checker and draft with the AI RTI Drafter. Section text is on the RTI Act, 2005 page.

No. By its own words Section 37(1)(b) covers offences under Sections 19, 24 and 27A and offences involving commercial quantity. A small quantity charge under Section 20(b)(ii)(A) or Section 21(a) carries up to one year and is decided on ordinary bail principles. The same is true of intermediate quantity, as the Himachal Pradesh High Court held on 22 July 2024.

First, the Public Prosecutor must get an opportunity to oppose the application. Second, where the prosecutor does oppose, the court must be satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offence while on bail. Both must be met. The Supreme Court called them cumulative and not alternative in 2024.

It depends entirely on the drug, and the Act fixes no figure. Section 2(viia) and Section 2(xxiiia) leave both thresholds to a Central Government notification carrying a long table, drug by drug. For ganja the table sets small quantity at 1,000 grams and commercial quantity at 20 kilograms. For any other substance, read the current notification entry, not a number you saw online.

Yes, but it is an argument and not an entitlement. The Supreme Court granted bail on that ground in March 2023 and again in July 2023, holding that conditional liberty can override the Section 37 embargo where incarceration has been long and the trial is nowhere near finishing. In November 2025 it set aside bail orders that leaned on delay without examining the material. Bring the custody certificate, the number of witnesses examined and a realistic date of conclusion.

When the agency fails to file the chargesheet in time and the accused applies before it is filed. For Sections 19, 24, 27A and commercial quantity offences, Section 36A(4) makes that period one hundred and eighty days, extendable to one year by the Special Court on a Public Prosecutor report giving specific reasons. Otherwise the ordinary sixty or ninety day limit under Section 187(3) of the BNSS applies.

Much harder, because Section 37 opens with a non obstante clause overriding the Code and speaks of release on bail generally. Where the twin conditions are attracted, the court must confront the same two satisfactions without a full record. Our explainer on bail in a non-bailable offence under BNSS Section 480 covers the ordinary rules around it.

Section 64A gives immunity from prosecution to an addict charged under Section 27, or with an offence involving small quantity, who voluntarily seeks and undergoes de-addiction treatment at a hospital or institution maintained or recognised by the Government or a local authority. The immunity can be withdrawn if the treatment is not completed. It does not touch commercial quantity charges.

• NDPS Act, 1985, full bare Act text on India Code
• Section 37, NDPS Act, offences to be cognizable and non-bailable
• Section 2, NDPS Act, definitions of commercial quantity and small quantity
• Section 21, NDPS Act, three quantity bands and punishments
• Section 36A sub-section 4, NDPS Act, the 180 day investigation period
• Central Bureau of Narcotics, notification table of small and commercial quantities
• Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 187 and 479
• Union of India versus Shiv Shanker Kesari, Supreme Court, 14 September 2007
• Mohd Muslim alias Hussain versus State NCT of Delhi, Supreme Court, 28 March 2023
• Rabi Prakash versus State of Odisha, Supreme Court, 13 July 2023
• Union of India versus Vigin K. Varghese, 2025 INSC 1316, 13 November 2025
• State of Punjab versus Baldev Singh, Supreme Court, 21 July 1999
• Union of India versus Mohanlal, Supreme Court, 28 January 2016
• Narcotics Control Bureau versus Kashif, 2024 INSC 1045, 20 December 2024
• Tofan Singh versus State of Tamil Nadu, Supreme Court, 29 October 2020
• Hira Singh versus Union of India, Supreme Court, 22 April 2020
• Sandeep Kumar versus State of Himachal Pradesh, High Court, 22 July 2024
• State of Meghalaya versus Lalrintluanga Sailo, 2024 INSC 537, 16 July 2024

• How to file a bail application, step by step
• Default bail and undertrial release under BNSS Section 479
• Bail in a non-bailable offence under BNSS Section 480
• RTI for bail orders and custody records
• Case-law database
• Timeline Tracker for counting RTI deadlines
• The RTI Playbook for the full escalation ladder