Summary
The Supreme Court set aside regular bail granted by the High Court to an accused alleged to have directed, from jail, the collection of a commercial quantity of heroin, because the High Court did not consider the twin conditions of Section 37(1)(b)(ii) of the NDPS Act. Applying those conditions itself, the Court found no case for bail given the accused's similar antecedents and his 1 year 7 months' custody against a possible twenty-year sentence.
Issues
- Whether the High Court's order granting regular bail in a case involving commercial quantity under the NDPS Act was consistent with Section 37 of the Act.
- Whether the respondent's custody of about 1 year 7 months amounted to prolonged incarceration warranting bail under Article 21 of the Constitution.
Provisions considered
- Section 37(1)(b)(ii), Narcotic Drugs and Psychotropic Substances Act, 1985In offences involving commercial quantity, bail may be granted only if, the Public Prosecutor opposing, the court is satisfied there are reasonable grounds to believe the accused is not guilty and is not likely to commit an offence on bail. The Court held consideration of these twin conditions mandatory; the High Court had not considered them, and on the Court's own consideration the respondent's similar antecedents ruled out the second condition. (¶¶ 12, 13, 14, 15, 16, 17, 18)
- Article 21, Constitution of IndiaProlonged incarceration can justify bail, but 1 year 7 months' custody against a possible twenty-year sentence was not long incarceration warranting interference. (¶¶ 19, 20, 22)
Held
- An appeal against grant of bail stands on a different footing from an application for cancellation of bail; the question is whether the bail order conforms to settled principles under Section 37 of the NDPS Act. (¶ 12)
- Where commercial quantity is involved, the court must consider and record satisfaction on the twin conditions of Section 37(1)(b)(ii); a liberal approach that ignores them is impermissible, and a High Court order that does not consider them at all cannot be sustained. (¶¶ 14, 15, 16, 17)
- Applying the twin conditions, the respondent's antecedents for offences of the same nature under the NDPS Act meant it could not be said that he was not likely to commit such an offence while on bail, so no case for bail was made out. (¶ 18)
- Custody of 1 year 7 months, when a maximum sentence of twenty years could follow conviction, was not incarceration long enough to warrant bail under Article 21. (¶ 19)
- Noting that the application of prolonged incarceration as a ground for bail has not been uniform across coordinate benches and that the question has been referred in Tasleem Ahmed v. State Govt. of NCT of Delhi, the Court declined to deliberate further, observing that interest of justice for all is paramount and that the sovereignty of the country prevails over personal liberty where drug supply is waged against the nation. (¶¶ 20, 21, 22)
Result
Appeal allowed; the High Court's order dated 15.10.2025 granting regular bail set aside (the respondent had already surrendered under the interim order); pending applications dismissed.