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 Jammu & Kashmir and Ladakh High Court has held that in cases where an accused has been convicted of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 involving commercial quantity of contraband, the stringent conditions laid down in Section 37 of the Act cannot be diluted merely on the ground of long incarceration, and that the recording of satisfaction on the twin conditions is a jurisdictional requirement and not a mere formality.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 ...

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

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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

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