Bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 follows rules of its own. Where the recovery is of commercial quantity, Section 37 reverses the ordinary presumption in favour of liberty and permits release only if the court records two findings in the accused's favour. In Kouame Faustin Kouman v. Customs, BAIL APPLN. 3146/2026, decided on 6 August 2026, the Delhi High Court dismissed the bail application of a foreign national from whom capsules of heroin and cocaine were recovered at the Indira Gandhi International Airport, and in doing so restated how the twin conditions operate in practice.
The recovery
The applicant was apprehended at the Indira Gandhi International Airport in April 2022. What followed was a recovery of a kind that has become depressingly familiar at international terminals: the contraband had been swallowed in capsules. Twenty-one capsules were recovered at the airport on 21 April 2022, and the remaining capsules were recovered in hospital over the following days, up to 25 April 2022, as the applicant passed them under medical supervision. In all, eighty-six capsules were recovered, containing approximately 1,539 grams of heroin and 172 grams of cocaine. On any reckoning — and it was not disputed — the recovery was of commercial quantity.
The arguments and the Court's answer
Two principal submissions were advanced. First, that the period between the apprehension on 21 April and the completion of the recovery on 25 April 2022 amounted to illegal custody, vitiating the proceedings. Secondly, that the applicant satisfied the conditions for release on bail.
Justice Girish Kathpalia rejected both. On the question of custody, the Court noted that the applicant had consented to medical treatment, and that the period spent in hospital while the capsules were recovered under medical supervision could not be characterised as unlawful detention. On the substantive question, the Court held that procedural objections of this kind cannot dilute the statutory mandate of Section 37: where the recovery is of commercial quantity, the court must be satisfied both that there are reasonable grounds to believe the accused is not guilty and that he is unlikely to offend while on bail. Neither satisfaction was possible on the material before the Court. The order also records the wider context that has led Parliament and the courts to treat drug trafficking with severity, including the financing of organised crime and terrorism through the narcotics trade.
How Section 37 changes the bail enquiry
Ordinary bail enquiry
Bail is the rule, jail the exception. The court weighs the gravity of the offence, the risk of flight, the possibility of tampering with evidence, and the period of custody, with a presumption that liberty should not be curtailed unnecessarily pending trial.
Commercial quantity under Section 37
The presumption is reversed. After hearing the Public Prosecutor, the court must record reasonable grounds for believing that the accused is not guilty, and that he is not likely to commit any offence on bail. Unless both findings can be made, bail must be refused, whatever the other equities.
The phrase "reasonable grounds for believing that he is not guilty" sets a high bar at a stage when the trial has not begun. It does not require the accused to prove innocence, but it does require something substantial in the material — a recovery that does not connect to the accused, a fatal breach of the safeguards attending search and seizure, or the like — before the court can record the belief the statute demands. Where the recovery is from the person of the accused himself, as in the case of swallowed capsules, that task is formidable.
Points that emerge for practice
Quantity drives everything. The first question in any NDPS bail matter is whether the alleged recovery is small, intermediate or commercial quantity, for that determines whether Section 37 applies at all.
Procedural grievances — about search, seizure, sampling or custody — are principally trial issues. They assist at the bail stage only where they strike at the root of the recovery.
Consent matters. Time spent in hospital for medically supervised recovery of contraband, with the accused's consent, is not illegal custody.
Delay in trial can, in appropriate cases, found a bail plea on constitutional grounds, but that argument must be squarely raised and established; it was not the basis of the present order.
Nothing in this article is a comment on the merits of any pending matter. The order discussed decides a bail application; the trial, and the ultimate question of guilt, remain open to be decided on evidence.
The outcome
The bail application was dismissed. The order is a reminder that in commercial quantity cases the NDPS Act means what it says: the twin conditions of Section 37 are not a formality to be recited but findings to be genuinely reached, and until they can be, the statute keeps the accused in custody while the trial proceeds.
Frequently Asked Questions
What are the twin conditions of Section 37 of the NDPS Act?
For offences involving commercial quantity, among others, Section 37 permits bail only where the Public Prosecutor has been heard and the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence, and that he is not likely to commit any offence while on bail. Both findings are required; failure on either is fatal to the application.
What is commercial quantity?
Commercial quantity is the quantity notified by the Central Government for each narcotic drug or psychotropic substance in the schedule to the NDPS Act. For heroin it is 250 grams and above; for cocaine it is 100 grams and above. Recoveries at or above the notified threshold attract the rigours of Section 37, including the restricted bail regime.
Do procedural irregularities in search or custody entitle the accused to bail?
Not by themselves at the bail stage. Objections about the manner of search, seizure or custody are ordinarily matters for trial, where their effect on the prosecution case can be assessed on evidence. At the bail stage, unless the defect is so fundamental that it undermines the recovery itself, the court still has to apply the twin conditions of Section 37.
Are foreign nationals treated differently in NDPS bail matters?
The statutory test is the same, but considerations such as the risk of the accused not being available for trial weigh in the overall assessment. Courts have also repeatedly noticed the gravity of organised drug trafficking through airports, which colours the assessment of whether the accused is likely to offend again if released.