NDPS Act - Long Custody & Trial Delay Not Ground For Bail In Commercial Quantity Narcotic Cases If S.37 Conditions Not Met : Supreme Court

The Supreme Court on Thursday held that delay in trial or prolonged incarceration cannot, by itself, justify the grant of bail in cases involving commercial quantity of narcotic drugs when the mandatory twin conditions under Section 37 of the NDPS Act remain unmet. The Court set aside two orders of the Bombay High Court that had granted bail to Vigin K Varghese, accused in major cocaine and methamphetamine seizures investigated by the Directorate of Revenue Intelligence (DRI).

A Bench of Justice Aravind Kumar and Justice N V Anjaria remitted the matter to the High Court for fresh consideration.

Background

According to the prosecution, the DRI seized 50.232 kg of cocaine on October 6–7, 2022, from a refrigerated container imported from South Africa in the name of a company where Varghese is a Director. The contraband was allegedly concealed inside cartons of green apples mixed with the declared cargo.

The Union also highlighted an earlier seizure on October 2, 2022, involving 198.1 kg of methamphetamine and 9.035 kg of cocaine, allegedly linked to the same network.

The prosecution relied on statements recorded under Section 67 of the NDPS Act to claim that Varghese coordinated imports, liaised with an overseas associate, and supervised logistics.

High Court Ignored Mandatory Statutory Threshold

The Supreme Court held that the High Court granted bail without engaging with crucial material, and without recording the mandatory satisfaction that:

1. there are reasonable grounds to believe the accused is not guilty, and

2. he is not likely to commit an offence while on bail,

as required under Section 37(1)(b).

The High Court had relied mainly on prolonged custody, anticipated delay in trial, lack of antecedents, and absence of direct proof of knowledge. The Supreme Court found this approach legally unsustainable in NDPS cases involving commercial quantity.

“The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding is not a casual observation. It is the statutory threshold under Section 37(1)(b)(ii) which would disentitle the discretionary relief and grant of bail must necessarily rest on careful appraisal of the material available. A conclusion of this nature, if returned without addressing the prosecution's assertions of operative control and antecedent involvement, risks trenching upon appreciation of evidence which would be in the domain of trial court at first instance.

This Court ordinarily shows deference to the discretion exercised by the High Court while considering the grant of bail. However, offences involving commercial quantity of narcotic drugs stand on a distinct statutory footing. Section 37 enacts a specific embargo on the grant of bail and obligates the Court to record satisfaction on the twin requirements noticed above, in addition to the ordinary tests under the Code of Criminal Procedure.”

Holding that the High Court had overlooked the prosecution's claim of the accused's earlier involvement and key incriminating circumstances, the Supreme Court set aside the bail order.

The matter has been remitted to the High Court, which must reconsider the bail plea strictly in accordance with Section 37, and pass a reasoned order within four weeks.

As an interim measure, Varghese will continue on bail under the same conditions until the High Court delivers its fresh decision. Any violation will permit the prosecution to seek immediate cancellation.

The Supreme Court clarified that it had expressed no opinion on the merits of the case.

Additional Solicitor General Raghavendra P Shankar appeared for the Union.

Case : Union of India v. Vigin K Varghese

Citation : 2025 LiveLaw (SC) 1101

Click here to read the judgment