An NDPS commercial-quantity bail order lacking satisfaction on Section 37’s twin conditions is unsustainable.

The respondent was apprehended on 10 October 2024 in connection with FIR No. 145/2024, registered under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The prosecution alleged recovery of more than 24 kilograms of ganja, exceeding the notified commercial quantity of 20 kilograms.

The Special NDPS Court, Pulwama, granted the respondent bail on 28 October 2025.

The Union Territory challenged that order under Section 439(2), read with Section 482, CrPC, contending that the trial court had not applied the restrictions in Section 37 of the NDPS Act.

The respondent argued, among other things, that bail should not be cancelled absent post-release misconduct or other supervening circumstances.

Whether the order granting bail could be set aside as legally unsustainable for failure to consider the mandatory conditions under Section 37(1)(b)(ii) of the NDPS Act, notwithstanding the absence of alleged post-bail misconduct.

Whether the alleged recovery of more than 24 kilograms of ganja required the trial court to record satisfaction on both statutory conditions before granting bail.

Section 37(1)(b)(ii) of the NDPS Act imposes twin conditions for granting bail in cases involving commercial quantities: the court must be satisfied that there are reasonable grounds for believing the accused is not guilty and that the accused is not likely to commit an offence while on bail; the statutory restrictions operate notwithstanding the ordinary bail provisions.

A challenge to the legality or propriety of the original bail order is distinct from cancellation based on subsequent misconduct; a superior court may set aside an illegal, perverse, or otherwise unsustainable bail order even without supervening misconduct (Puran v. Rambilas; Abdul Basit @ Raju v. Mohd. Abdul Kadir Chaudhary; State of Rajasthan v. Indraj Singh).

The court also relied on State of Kerala v. Rajesh and Narcotics Control Bureau v. Mohit Aggarwal for the mandatory nature of Section 37’s conditions, and Mahipal v. Rajesh Kumar on appellate scrutiny of whether bail discretion was validly exercised.

The alleged 24-kilogram recovery exceeded the 20-kilogram commercial-quantity threshold, bringing the case within Section 37’s stringent bail regime.

The High Court found that the impugned order did not disclose adequate consideration of the statutory twin conditions, particularly a legally sustainable satisfaction that there were reasonable grounds for believing the respondent was not guilty; nor did it meaningfully address whether he was unlikely to commit an offence while on bail.

The absence of allegations of post-bail misconduct did not cure that defect, because the challenge was to the legality of the original bail order rather than solely to subsequent conduct.

The respondent was directed to surrender before the trial court within two weeks, failing which that court could adopt coercive measures in accordance with law.

The Court clarified that its observations did not address guilt or the merits of the prosecution case and left the respondent at liberty to seek bail afresh.