Bail jurisprudence under the NDPS Act runs on a different track from ordinary criminal law. In Sushil v. State of Rajasthan (S.B. Criminal Miscellaneous Bail Application No. 10979/2026, decided 9 October 2026), the Rajasthan High Court at Jodhpur dismissed a third bail application in a case involving recovery of 102 grams of MDMA — a commercial quantity — holding that none of the grounds pressed could clear the statutory embargo of Section 37.
The case
The petitioner was arrested in January 2025 in a case registered at Police Station Bichhwal, District Bikaner, on the allegation of recovery of 102 grams of MDMA — above the commercial-quantity threshold — with offences under Sections 8 and 22 of the NDPS Act. By the time the third bail application was heard before Justice Mukesh Rajpurohit, the chargesheet had been filed and one of sixteen prosecution witnesses had been examined. An earlier application had been dismissed as not pressed, with liberty to renew after the seizure officer's evidence.
The grounds pressed, and why they failed
The statutory logic
Section 37 inverts the ordinary presumption in favour of bail. For commercial-quantity cases, the legislature has made pre-trial liberty conditional on a prima facie judicial assessment of innocence — a deliberately high bar. The Court recorded in terms that neither of the twin conditions stood fulfilled: on the material before it, there were no reasonable grounds to believe the petitioner was not guilty, nor that he would not offend on bail. Once that finding is made, the usual bail considerations never come into play.
Ordinary bail logic
Bail is the rule; custody must be justified by flight risk, tampering, or gravity. Delay in trial strengthens the plea for liberty.
Section 37 logic
Custody is the statutory default for commercial quantity; liberty must be justified by a prima facie view of innocence. Delay alone does not open the gate.
For the defence in commercial-quantity NDPS cases: build the Section 37 argument on the merits of the recovery itself — independent witnesses, link evidence, sampling integrity, quantity disputes — rather than on custody arithmetic; preserve every procedural objection in cross-examination so it matures into a trial defence; and when renewing bail, come with a genuine change in circumstances, such as material elicited in evidence, not a restatement of the last application.
The decision does not say that NDPS undertrials are without remedy — it says the remedy must fit the statute. Where the recovery is of commercial quantity, the realistic paths are a trial fought on the safeguards the Act itself mandates, or custody of such extraordinary length that constitutional principles intervene. Neither is engaged by repetition of grounds the statute has already answered.
Frequently Asked Questions
What are the twin conditions under Section 37 of the NDPS Act?
For offences involving commercial quantity, bail can be granted only if the court has reasonable grounds to believe the accused is not guilty of the offence, and that he is not likely to commit any offence while on bail. Both conditions must be satisfied together, in addition to the ordinary bail considerations.
Can long custody and a slow trial override Section 37?
Not as a matter of course. The court in this case, following recent Supreme Court authority, held that prolonged incarceration and the pace of trial do not by themselves dilute the statutory embargo where the twin conditions remain unsatisfied. Constitutional-delay arguments succeed only in far more extreme situations.
What happens to procedural objections — Section 50, sampling delay, seizure defects?
They are ordinarily treated as matters of evidence for the trial court. At the bail stage the court takes a prima facie view of the record; alleged non-compliance with search and sampling safeguards is left open to be proved and argued at trial unless the defect is apparent and fundamental.
Is a third bail application maintainable at all?
Successive bail applications are maintainable, but they must show a change in circumstances since the earlier rejection. Repeating grounds already considered, or raising grounds that were available earlier, rarely moves the needle — particularly where Section 37 applies.