Bail in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 is decided within a framework deliberately tilted against the accused. Yet two orders passed by Justice Girish Kathpalia of the Delhi High Court on 12 August 2026 — Nafi Nazar v. Narcotics Control Bureau, BAIL APPLN. 1043/2026, and Paschal Obinna Nwagbaoso v. Narcotics Control Bureau, BAIL APPLN. 3670/2025 — show the two routes by which bail is nonetheless granted: the quality of the evidence actually collected, and the length of custody measured against the pace of the trial.
One investigation, two applicants
Both applications arose out of an investigation by the Narcotics Control Bureau commenced in December 2021, registered as Crime No. VIII/77/DZU/2021, involving alleged offences under Sections 8, 21, 22, 23 and 29 of the NDPS Act. In the course of that investigation, recoveries — including charas, methamphetamine and cocaine — were effected from various accused persons. The two applicants before the Court stood in very different positions, and the orders granting them bail turned on very different reasoning.
Nafi Nazar: what the evidence actually showed
The first applicant was arrested on 24 July 2025 at Cochin airport, long after the investigation had begun. Nothing incriminating was recovered from him. The case against him rested on three planks: disclosure statements of co-accused naming him, call detail records showing telephonic contact with them, and money transfers between him and certain co-accused. His defence was that the transactions related to his spice business.
The Court examined each plank. On the call records, it held that merely because calls were exchanged between persons, complicity to the extent of incrimination cannot be inferred where the conversations themselves were not intercepted. On the money trail, it noted that the amounts were not substantial enough to indicate dealings in narcotics, and observed that transfers through banking channels are an unusual way of conducting an illicit drug trade. What remained were the disclosure statements of co-accused — material of limited weight standing alone. With co-accused already on bail and the trial progressing slowly, bail was granted on a personal bond of Rs. 1,00,000 with one surety in the like amount.
Paschal Obinna Nwagbaoso: when the trial goes nowhere
The second applicant, a foreign national, had been in custody since 8 December 2021 — almost five years. The recoveries attributed to him included 60 grams of cocaine, an intermediate quantity, and 55 grams of methamphetamine, a commercial quantity, so the rigours of Section 37 applied. The prosecution was to examine 22 witnesses; only 8 had been examined. The Bureau, notably, did not so much oppose bail on merits as urge that the trial be expedited instead, pointing to the applicant's expired visa and foreign nationality.
The Court granted bail, observing that the applicant had been in jail since December 2021 and the end of the trial was nowhere in sight. Release was directed on a personal bond of Rs. 1,00,000 with one surety, with directions concerning the Foreigners Regional Registration Office in view of the applicant's status as a foreign national whose visa had lapsed.
The two routes compared
The evidentiary route
Nothing recovered from the applicant; case built on co-accused disclosures, call records and modest bank transfers. The Court tested whether that material, taken at its highest, could sustain the accusation — and found it could not.
The Article 21 route
Commercial quantity attributed and Section 37 engaged, but custody of almost five years against 8 of 22 witnesses examined. Continued detention without a foreseeable end to the trial became the decisive consideration.
What these orders illustrate for practice
NDPS bail applications are frequently argued, and refused, at the level of generality: the quantity is commercial, Section 37 applies, and the application fails. These two orders show the value of descending to the particulars of the record.
Points that repay close attention in any NDPS bail application: what precisely was recovered, and from whom; whether the applicant is connected by direct recovery or only by disclosure statements of others; whether call detail records are corroborated by intercepted communications; whether the money trail is consistent with the alleged trade; how long the applicant has been in custody; how many witnesses have been examined and at what rate; and whether similarly placed co-accused are already on bail.
Neither order lays down new law, and no bail order binds another court on different facts. What they demonstrate is reasoning that recurring fact-patterns attract — and they were both delivered by the same judge on the same day, in the same investigation, by two entirely different routes.
The statutory framework in brief
| Provision | Substance |
|---|---|
| Section 37, NDPS Act | For commercial quantity offences, bail requires reasonable grounds to believe the accused is not guilty and is unlikely to offend on bail, in addition to ordinary considerations. |
| Section 29, NDPS Act | Abetment and criminal conspiracy — the provision through which persons not found in possession are typically implicated. |
| Section 483, BNSS 2023 | Power of the High Court and Court of Session to grant regular bail, corresponding to Section 439 of the former CrPC. |
| Article 21, Constitution | The right to a speedy trial, engaged where custody is prolonged and the trial makes no meaningful progress. |
Bail jurisprudence under the NDPS Act continues to evolve, and each application turns on its own record. These orders of 12 August 2026 are useful, contemporary illustrations of how the Delhi High Court approaches that record.
Frequently Asked Questions
Can call detail records alone justify keeping an accused in custody?
Call detail records show that two persons spoke; they do not show what was said. In the order of 12 August 2026 the Delhi High Court held that complicity cannot be inferred from telephonic connectivity alone where the conversations were not intercepted and nothing incriminating was recovered from the applicant. Such records usually need corroboration from recoveries, intercepts or other material.
Does Section 37 of the NDPS Act bar bail in commercial quantity cases?
Section 37 imposes twin conditions: the court must have reasonable grounds to believe the accused is not guilty and is unlikely to offend while on bail. It makes bail difficult, not impossible. Courts have granted bail despite Section 37 where the evidence is weak or where prolonged incarceration without trial progress violates the constitutional right to a speedy trial.
How does trial delay affect an NDPS bail application?
Where an accused has spent years in custody and the examination of witnesses is proceeding so slowly that the end of the trial is not in sight, continued detention becomes punitive rather than preventive. That engages Article 21 of the Constitution, and courts weigh it heavily even in commercial quantity cases, as the order concerning a custody of nearly five years illustrates.
Are disclosure statements of co-accused enough to refuse bail?
A disclosure statement made by a co-accused to an investigating agency has limited evidentiary value at trial. Where such statements are the principal material against an applicant, and nothing was recovered from him, courts examining bail look for independent corroboration before treating the accusation as strong.