Section 37 of the NDPS Act is the steepest bail threshold in ordinary criminal practice: for commercial-quantity offences, the court must have reasonable grounds to believe the accused is not guilty and is unlikely to offend on bail. The Delhi High Court's judgment in BAIL APPLN. 516/2026, pronounced on 16 October 2026, shows the route by which that threshold is nonetheless crossed. A Tanzanian national, intercepted at IGI Airport in April 2022 after ingesting capsules later found to contain about 702 grams of cocaine, had spent roughly four and a half years in custody while the trial crawled through 13 of 33 prosecution witnesses. Justice Prateek Jalan found the Section 37 requirement made out — resting on discrepancies in the seizure and chain of custody, delayed sampling and the absence of antecedents — and granted bail on strict conditions.
The prosecution case
The applicant arrived at Terminal 3 of IGI Airport from Tanzania on 8 April 2022 and was intercepted by Customs. He stated that he had ingested capsules containing narcotics and was taken to hospital, where 59 capsules were recovered between 8 and 10 April 2022 across four panchnamas. The substance tested positive for cocaine with a net weight of about 702 grams — well above the commercial-quantity threshold. He was formally arrested on 14 April 2022, and charges were framed under Sections 21(c) and 23(c) of the NDPS Act, the case being registered through Customs at Police Station Customs, IGI Airport. The bail application was moved under Section 483 of the BNSS.
How Section 37 was answered
The judgment, reserved on 14 October and pronounced on 16 October 2026, works through the two limbs of Section 37 rather than around them.
Integrity of the recovery
The court noted procedural discrepancies in the seizure and chain of custody, spread across the four panchnamas, together with delay in sampling — matters going to the core of a case built on recovery.
Antecedents
The applicant had no criminal antecedents, bearing on the second limb — the likelihood of offending while on bail.
Custody against trial progress
About four years and six months in custody, with only 13 of 33 prosecution witnesses examined, meant the trial had no early end in sight.
Conclusion
The court held the applicant "has made out the requirement of Section 37 of the NDPS Act" and granted bail on conditions.
The conditions imposed
Bail in commercial-quantity cases, when granted, is tightly fenced. The court required a personal bond of Rs 1,00,000 with two sureties in the like amount verified by the Special Court, with a lien on the sureties' property; appearance on every date; a functional mobile number and verified addresses, with any change notified on affidavit; surrender of the passport and no departure from India without the Special Court's permission; no inducement, threat or tampering, and no offence while on bail; and an affidavit disclosing source of income and bank account details. Because the applicant is a foreign national, the State must notify the Foreign Registration Officer, the applicant must register with the FRRO within a week and inform the investigating officer, and the High Commission of Tanzania is to be informed.
| Factor | Weight in the judgment |
|---|---|
| Commercial quantity (≈702 g cocaine) | Triggered Section 37 — bail required satisfying the twin conditions |
| Discrepancies in seizure, chain of custody, sampling delay | Supplied prima facie "reasonable grounds" on the not-guilty limb |
| No antecedents | Supported the unlikely-to-offend limb |
| 4 years 6 months custody; 13 of 33 witnesses done | Prolonged incarceration reinforced release |
| Foreign national | Managed through passport surrender, FRRO registration and notification conditions, not by refusing bail |
Why the judgment matters
Two features deserve attention. First, the judgment treats foreign nationality as a risk to be managed by conditions rather than a disqualification — an approach consistent with the principle that bail decisions rest on individual assessment, not categories. Second, it illustrates the now well-settled interaction between Section 37 and the constitutional guarantee of a speedy trial: the statutory rigour holds where the prosecution case is facially sound and the trial moves, but recovery-stage discrepancies combined with years of custody and a distant trial horizon can satisfy even the twin conditions. Accused persons and their families should note that the route to such orders runs through the record — panchnama comparison, sampling timelines, FSL dates and witness progress — all of which must be placed before the court with precision.
This article summarises a Delhi High Court judgment for general information. Findings at the bail stage are prima facie and do not determine guilt or the outcome of the trial. Nothing here is legal advice.
Frequently Asked Questions
What are the twin conditions of Section 37 NDPS Act?
For offences involving commercial quantity, bail requires that the Public Prosecutor be heard and that the court find reasonable grounds to believe the accused is not guilty of the offence and is not likely to commit any offence while on bail. These apply in addition to the ordinary bail considerations, which is why commercial-quantity NDPS bail is exceptional rather than routine.
How do seizure and sampling defects matter at the bail stage?
Defects such as discrepancies across panchnamas, gaps in the chain of custody or delay in sampling do not by themselves end the prosecution, but at the bail stage they can supply the "reasonable grounds to believe" that Section 37 demands — because the prosecution case rests on the integrity of the recovery. In this case such discrepancies, with clean antecedents, satisfied the first twin condition prima facie.
Does prolonged custody help in an NDPS case despite Section 37?
Yes. The Supreme Court has repeatedly recognised that the rigours of Section 37 cannot justify indefinite pre-trial detention where the trial makes no realistic progress. Here, about four and a half years of custody with only 13 of 33 witnesses examined reinforced the case for release.
What extra conditions apply when the accused is a foreign national?
Besides bonds, sureties, attendance and non-tampering conditions, the court required surrender of the passport, prohibited departure from India without the Special Court's permission, directed registration with the Foreigners Regional Registration Office, and required the State to notify the Foreign Registration Officer, with the High Commission of the applicant's country to be informed.