Post-Conviction NDPS Bail Can't Be Granted On Long Incarceration Alone; Twin Conditions U/S 37 Must Be Strictly Met: J&K&L High Court

The Court was hearing an application for suspension of sentence and grant of bail filed by the applicant/appellant, who had been convicted of offence under Section 8/15(c) of the NDPS Act for possession of commercial quantity of Poppy Straw, in terms of judgment of Special Judge (Designated under NDPS Act), Anantnag. The applicant was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1 lakh, with a default sentence of one year.

A Bench of Justice Sanjay Dhar, while dismissing the application and refusing to suspend the sentence, observed that,

“from an overall reading of the impugned judgment passed by the learned Special Judge and the cursory look at the statements of the prosecution witnesses, it cannot be stated that the appellant is not guilty of the offences for which he has been convicted. Thus, the conditions stipulated in Section 37 of the NDPS Act for grant of bail to the appellant are not satisfied in the present case.”

As per the prosecution case police while on routine patrolling intercepted a vehicle (Alto 800). During search of the vehicle, the police recovered five Nylon bags concealed inside the vehicle containing a total of 70 kgs of Poppy Straw. The appellant was found to be in-charge of the vehicle at the relevant time. After full-dressed trial, the Special Judge convicted the appellant under Section 8/15(c) of the NDPS Act and sentenced him as above.

The appellant challenged the conviction and sentence by way of an appeal before the High Court, and simultaneously filed the present application seeking suspension of sentence and grant of bail pending consideration of the appeal. The appellant contended that he had already undergone more than four years of imprisonment while facing trial, and that decision of the appeal was likely to take time.

The respondent opposed the application, contending that since the appellant had been found in possession of commercial quantity of contraband, the provisions of Section 37 of the NDPS Act were attracted, and unless the strict conditions laid down therein were satisfied, the appellant could not be granted bail.

Court's Observations:

The Court first noted that it was not in dispute that the appellant had been convicted under Section 8/15(c) of the NDPS Act and was found to be in possession of a commercial quantity of contraband. The Court then framed the central question as to whether in a case where Section 37 of the NDPS Act is attracted, a convict can be released on bail merely on the ground of long incarceration.

Referring to Union of India v. Rattan Malik (2009) 2 SCC 624, the Court observed,

“Recording of satisfaction that accused is not guilty of offence and that he is not likely to commit any offence while on bail is sine qua non for grant of bail under NDPS Act.” The Court also cited Rattan Kumar Vishwas v. State of UP (2009) 1 SCC 482, wherein it was held that a person convicted under the NDPS Act should not be released on bail unless the mandatory conditions under Section 37 are satisfied.

The Court then drew a distinction between pre-trial bail and post-conviction suspension of sentence, quoting extensively from Preet Pal Singh v. State of Uttar Pradesh (2020) 8 SCC 645 recording

“There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post-conviction. In the earlier case there may be presumption of innocence… However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial.”

The Court further relied upon State of (GNCT of Delhi) Narcotics Control Bureau v. Lokesh Chadha (2021) 5 SCC 724, wherein the Supreme Court held that where the trial has ended in an order of conviction, the High Court must be duly cognizant that a finding of guilt has been arrived at, and while the High Court is not deprived of its power to suspend sentence, it may do so only for sufficient reasons bearing on the public policy underlying Section 37 of the NDPS Act.

Most significantly, the Court referred to the recent Supreme Court judgment in State of Punjab v. Sukhwinder Singh @ Gora (SLP (Crl) No.5020 of 2026, wherein the Supreme Court held:

“The position of law on the grant of bail in matters involving recovery of commercial quantity of contraband under the NDPS Act is well settled. Section 37(1)(b)(ii) of the NDPS Act is cast in mandatory terms. Where the Public Prosecutor opposes the application for bail, the Court can enlarge an accused on bail only upon recording its satisfaction on two cumulative conditions: first, that there are reasonable grounds for believing that the accused is not guilty of the offence; and second, that the accused is not likely to commit any offence while on bail. The recording of such satisfaction is not a mere formality but a jurisdictional requirement.”

The Supreme Court in Sukhwinder Singh had further held that the rigour of Section 37 cannot be diluted even while bearing in mind the right to speedy trial under Article 21 of the Constitution. The High Court quoted that judgment as observing,

“The right to speedy trial under Article 21 of the Constitution is undoubtedly a valuable constitutional guarantee; but in the matters involving recovery of contraband in commercial quantity, the twin conditions under Section 37(1) are necessary.”

Applying these principles to the facts, the Court examined the appellant's contentions regarding inconsistencies in prosecution witnesses, non-association of civil witnesses, and non-compliance with Sections 42 and 50 of the NDPS Act. The Court noted that a perusal of the statements recorded during trial prima facie showed that the police witnesses had supported the prosecution case, and that the reasoning adopted by the Special Judge regarding the integrity of samples appeared to be well founded.

Regarding Section 42, the Court observed that from a cursory reading of the material, it appeared to be a case of chance recovery and not recovery based on prior information, as such, provisions of Section 42 were not attracted.

The Court concluded,

“From an overall reading of the impugned judgment passed by the learned Special Judge and the cursory look at the statements of the prosecution witnesses, it cannot be stated that the appellant is not guilty of the offences for which he has been convicted. Thus, the conditions stipulated in Section 37 of the NDPS Act for grant of bail to the appellant are not satisfied in the present case.”

On the appellant's contention of long incarceration of more than four years, the Court held that mere fact of custody would not entitle him to bail unless it is shown that there is no likelihood of his appeal being taken up for hearing in the near future. The Court noted that the appellant's counsel was given an option of arguing the main appeal finally but sought time to do so, and therefore, it could not be stated that the constitutional right under Article 21 stood violated.

The High Court thus dismissed the application, finding no merit therein.

Case Title: Bashir Ahmad Bhat Vs UT of J&K

Citation: 2026 LiveLaw (JKL) 

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