Bail in commercial-quantity NDPS cases requires satisfaction of Section 37’s twin conditions despite prolonged incarceration.

On 16 December 2022, Assam Rifles personnel allegedly recovered 49 packets of brown sugar weighing approximately 2.163 kg, including packing material, concealed inside the seat of a Mahindra Bolero vehicle.

The vehicle was allegedly being driven by Mamang, who escaped, while the petitioner, Seiminthang Mate, and another passenger, Pandian, were arrested and handed over to Tengnoupal Police Station.

An FIR was registered under Sections 21(c), 29 and 60(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The petitioner was remanded to police and thereafter judicial custody. A charge-sheet was filed, and Special Trial No. 34 of 2023 was registered; the case remained at the stage of hearing on charge.

The petitioner’s earlier bail application before the Special Judge was rejected on 28 December 2023, principally on the ground that commercial-quantity contraband had been recovered from the vehicle in which he was travelling.

Before the High Court, the petitioner contended that he was merely a passenger, was neither the owner of the vehicle nor the contraband, had no previous criminal involvement, and had remained in custody since 16 December 2022 with little progress in the trial.

The State opposed bail, relying on the commercial quantity involved, the alleged statutory presumption of conscious possession under Section 35 of the NDPS Act, and the mandatory twin conditions under Section 37.

Whether the petitioner satisfied the twin conditions under Section 37(1)(b) of the NDPS Act so as to justify bail despite the alleged recovery of commercial-quantity narcotics?

Whether the petitioner’s prolonged incarceration, absence of prior similar criminal involvement, and slow progress of the trial supported the grant of bail?

Whether the petitioner’s mere presence as a passenger in the vehicle, without additional material linking him to the vehicle or contraband, constituted sufficient material to deny bail?

The Court applied Section 439 of the Code of Criminal Procedure, 1973, read with Section 37 of the NDPS Act, which imposes a statutory restriction on bail in cases involving commercial quantities and requires the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is unlikely to commit an offence while on bail.

Section 35 of the NDPS Act permits a rebuttable presumption regarding culpable mental state, but the presumption is not automatic in the absence of material supporting conscious possession.

The Court relied on Union of India v. Vigin K. Varghese, 2025 INSC 1316, for the proposition that commercial-quantity cases occupy a distinct statutory footing and must satisfy Section 37.

It also relied on State of Punjab v. Balraj Singh @ Billa, 2026 SCC OnLine SC 1058, holding that the twin conditions under Section 37 remain mandatory even where bail is sought on the ground of prolonged incarceration.

Following Shri Lunkhogin Kipgen v. Officer-in-Charge, NAB PS, Imphal, 2026:MNHC:195, the Court held that long incarceration and slow trial progress may be considered only after the Section 37 requirements are satisfied.

The Court accepted that the alleged contraband was of commercial quantity and therefore treated Section 37 as applicable.

However, on the materials placed before it, the petitioner had been in custody for more than three and a half years, the trial had made little progress, and he had no previous involvement in a similar offence.

The charge-sheet contained no material, apart from his presence in the vehicle, linking him to the seized narcotics; nor was he shown to be the owner of the vehicle.

The Court therefore considered the prosecution case to rest substantially on the rebuttable presumption under Section 35, rather than on credible independent material establishing conscious possession.

On that basis, it found reasonable grounds for believing that the petitioner might not be guilty for the limited purpose of bail and that he was not likely to commit a similar offence while on bail, thereby satisfying Section 37 despite the commercial quantity and prolonged incarceration.

The petitioner’s release on bail was directed upon furnishing a personal bond of ₹1,00,000 with one surety, a gazetted officer, for the like amount, to the satisfaction of the Special Judge, NDPS, Chandel.

The conditions included regular appearance, non-interference with witnesses or evidence, prohibition on leaving Manipur without permission, surrender of any passport, and liberty to the State to seek cancellation upon breach.

The Court clarified that its observations were confined to the bail application and would not prejudice the trial on merits.