Table of Contents
Introduction
The Narcotic Drugs and Psychotropic Substances Act, 1985(NDPS Act) is India’s principal legislative framework to deal with narcotic drugs and psychotropic substances, aiming to prevent illicit trade, trafficking, and drug use through strict measures and punishments. Granting of bail under this Act is more stringent than ordinary criminal laws due to the brevity of drug offenses.
Section 37 of the NDPS Act, famously known as the “twin-conditions,” sets rigorous preconditions to grant bail to individuals accused of crimes under this Act. The bail process becomes exceptionally restrictive as it requires Courts to believe that there are “reasonable grounds” that the accused has not committed any crime and “is not likely to commit any offense” while on bail. This Section has been the subject of condemnation due to undermining the Right to liberty under Article 21, shifting the burden of proof prematurely on the accused, and long pre-trial detention of even those accused found innocent later on. The aforementioned Section has become a point of legal and scholarly debate due to the balance sought between public interest and individual rights in the menace of drug crimes.
Legal Framework and Background
Section 37 sets out stringent requirements that will only be met where the traditional bail provisions defined in the CrPC, which apply to all offences under the CrPC, will not suffice to protect against the unique risks associated with drug trafficking due to its organisation, transnationalisation and repetitive nature and severity within society; therefore, to fulfil both obligations to the international community and to provide a deterrent effect, Parliament explicitly created an additional statutory impediment that reverses the customary presumption of entitlement to bail and requires two stringent and specific conditions to be met as a foundation for release from custody; therefore, the only persons who can demonstrate prima facie proof of their innocence and non-recidivism will qualify for being released on bail; the provisions in the CrPC are much broader and more lenient overall.
The NDPS Act consolidates all laws related to narcotic drugs and psychotropic substances, including all processes related to them, including their cultivation, manufacture, possession, sale, purchase, transport, and consumption. It encompasses stringent legislation such as forfeiture of properties derived from drug activities, as well as rehabilitation of offenders. Section 37 of this Act deals primarily with bail provisions in case of serious contraventions such as commercial quantities of drugs. It sets the “twin conditions” mandatorily needed to grant bail to a person accused of a drug crime under this Act: i. Existence of reasonable grounds to believe the accused is not guilty of the crime, and ii. The accused is not likely to commit any offence while on bail. The normal presumption of innocence until proven guilty under the criminal law is reversed since the burden of proof shifts to the shoulders of the accused.
The other criminal laws governed by the Code of Criminal Procedure (CrPC) rely on the principle- ‘Bail is the rule and jail is the exception’ which flows mainly from Section 436 and Section 437/439 CrPC, and from the constitutional interpretation by courts. They rely on the presumption of innocence and the right to liberty of individuals. In NDPS, this is reversed, making bail the exception, especially in heinous crimes.
Judicial Interpretation of section 37’s twin conditions
The Apex Court in the case of Union of India v. Vigin K. Varghese (2025) INSC 1316 observed that offenses revolving around commercial quantities are on the pedestrian of ‘distinct statutory footing’ under Section 37, and the twin conditions should be mandatorily satisfied with bail orders being reasoned, focusing on prosecution material without overlooking statutorily requirements. Also, in the case of State of Meghalaya v. Lalrintluanga Sailo & Anr.. (2024) 7 SCC Online 537, it was held that non-satisfaction of either condition can be a ground to deny bail, highlighting the strict nature of this legislation compared to ordinary criminal cases.
Can delay be a ground to grant bail?
In the NDPS Act Delay Case 2023 SCC OnLine SC 352, the Court held that a prolonged or delayed trial couldn’t be a ground for bail in commercial quantities cases. The material evidence should be meticulously analysed, and any oversight leads to bail being set aside.
However, bail has been granted by the Court in exceptional cases like health issues of the accused, delayed trial, procedural lapses, or material evidence being demonstrated satisfactorily. Also, some judgments pronounced supremacy to fundamental rights of the accused, including their right to liberty and speedy trial, calling for a balance between individual rights and public interest.
Challenges and criticisms in applying the twin conditions
The Courts face several practical challenges in implementing the twin condition, such as difficulty in determining whether the accused is non-guilty due to wholesome reliance on the prosecution’s evidence, which is either preliminary or incomplete. The second test of “is likely to commit an offence” is subjective in cases of well-established criminal antecedents or organized crime connections. The onus burden of fulfilling both conditions has led to erroneous granting or rejection of bail petitions due to misinterpretation or procedural lapses. The burden of proof on the accused to provide reasonable grounds that he is not guilty is an uphill task against a heavily evidentiary prosecution. The delayed trial of the accused violates their right to a speedy trial; however, courts do not recognize it as a ground for bail. Organized crime syndicates or large consignments are cases where satisfying both conditions is simply not viable. The meticulous assessment of the prosecution’s evidence and the accused’s antecedents should be done before rejecting bail applications. This can also be misused as a preventive measure due to its strictness or over-application, reflecting tensions between adhering to statutes and constitutional guarantees of liberty and speedy trial.
Comparative analysis and reform proposals
As compared to treating jail as an exception under Section 37 of the NDPS Act, the United States denies bail in cases where the accused poses a threat to public safety (Bail Reform Act 1984; 18 U.S.C. § 3142(e), § 3142(f)(1)(C), § 3142(g). The basis of decisions in such cases doesn’t follow the procedure established by law but is rather subjective to allow subjectivity. In the United Kingdom, bail is denied as a preventive measure to avoid evidence tampering or absconding (Bail Act 1976, Section 4; Schedule 1, Part I). It lies at the discretion of the judiciary, balancing the liberty of individuals with stringent procedures. Countries like Canada and Australia believe in the rehabilitation of the accused and their rights with a strong emphasis on proportionality, social integration, and addressing addiction (Canadian Charter of Rights and Freedoms, s. 11(e); Criminal Code, R.S.C. 1985, s. 515; Bail Act 2013 (NSW), ss. 16–19,18).
The courts in India must adopt a more pragmatic approach to grant bail under the section requiring reasonable grounds to believe the accused is not guilty, rather than requiring proving beyond a reasonable doubt at the bail stage, in cognisance of other crimes (NDPS Act, 1985, s. 37(1)(b). The NDPS Act must set a clear framework to distinguish between commercial trafficking cases and minority or first-time offender cases based on the test of proportionality to oversee the granting of bail. The ground for assessing twin conditions must be clear and definite, allowing transparency and consistency (Article 21, Constitution of India). The undue detention before trial must be forgone to enhance the speedy trial mechanism.
Conclusion
The Narcotic Drugs and Psychotropic Substances Act, 1985, represents India’s robust legislative approach to addressing drug trafficking and use, particularly alongside the extra burdens imposed on bail under Section 37. The dual obligations imposed on courts, to have reasonable grounds to believe the accused is not guilty and that they do not pose a further risk to society if released, are reflective of a clear legislative choice to prioritize societal interests and prevention over the normal presumption in favor of bail in criminal law.
Nonetheless, the strict regime raises potential complications in practice. Courts have difficulty applying the dual requirements at the release stage, often drawing from preliminary and sometimes incomplete prosecution evidence. Further, by shifting the burden of proof to the accused to show they are not guilty and will not reoffend, as well as providing detention of the accused to personally have to show they would not reoffend if released, raises serious concerns as to the deprivation of liberty and the precept of fair and legal protection embodied in Article 21. The subjective nature of determining reasonable grounds also creates scope for inconsistent application and potential misuse of judicial discretion to impose pre-emptive punishment as an adjunct to the legal process.
This article is authored by Aarya Singh, student at Chanakya National Law University, Patna.
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