Are Twin Conditions Under Section 37 NDPS Act Mandatory in Commercial Quantity Cases? Supreme Court Clarifies

In State of Punjab v. Balraj Singh @ Billa (2026 INSC 618), the Supreme Court once again examined the scope of Section 37 and clarified that the “twin conditions” prescribed under the provision are mandatory in cases involving commercial quantities of narcotic drugs or psychotropic substances. The Court set aside a Punjab and Haryana High Court order granting bail. It reaffirmed that courts cannot adopt a liberal approach while dealing with commercial quantity offences under the NDPS Act.

The judgment serves as an important reminder that statutory restrictions on bail under special legislation cannot be ignored merely based on the period of custody or the anticipated delay in trial.

Background of the Case

The case originated from FIR No. 06 dated 10 January 2024, registered under Sections 21(c), 29, 61, and 85 of the NDPS Act.

According to the prosecution, a police team had established a checkpoint near Canal Road in Village Veeram, Punjab. During checking, a vehicle attempted to flee after noticing the police. The vehicle soon stopped, and its occupants were questioned. Their inability to provide satisfactory explanations regarding the vehicle raised suspicion.

Following compliance with statutory requirements under Section 50 of the NDPS Act, a search was conducted in the presence of a Deputy Superintendent of Police. The search resulted in the recovery of 1.465 kilograms of heroin, which falls within the category of commercial quantity under the NDPS Act. Subsequent forensic examination confirmed that the seized substance was heroin (diacetylmorphine).

During investigation, the arrested co-accused allegedly disclosed that they had collected the heroin on the instructions of Balraj Singh @ Billa, who was lodged in Central Jail, Goindwal Sahib. It was further alleged that he was operating a drug trafficking network from inside the jail through illegally possessed mobile phones. Based on these allegations, he was arrayed as an accused.

Proceedings Before the Courts

The respondent initially sought regular bail before the Special Court at Tarn Taran. His application was rejected.

Thereafter, he approached the Punjab and Haryana High Court. The High Court granted regular bail on 15 October 2025. While doing so, it observed that criminal antecedents alone could not justify the denial of bail and noted that the accused had remained in custody for a substantial period. The High Court also considered the possibility that the trial would take considerable time to conclude.

Aggrieved by this order, the State of Punjab approached the Supreme Court.

Issue

• Whether a court can grant bail in a commercial quantity NDPS case without recording satisfaction regarding the twin conditions prescribed under Section 37 of the NDPS Act?

The answer to this question required the interpretation of Section 37 and the examination of previous judicial precedents.

Understanding Section 37 of the NDPS Act

Section 37 creates a statutory embargo on the grant of bail in certain serious offences under the NDPS Act. For offences involving a commercial quantity, bail cannot be granted unless:

1. The Public Prosecutor is given an opportunity to oppose the bail application; and
2. The Court is satisfied that:
   • there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and
   • the accused is not likely to commit any offence while on bail.

These two requirements are popularly known as the “twin conditions” of Section 37. The provision begins with a non-obstante clause, indicating that it overrides the general principles governing bail under criminal procedure law.

Arguments Advanced by the State

The State of Punjab contended that the High Court had completely ignored the mandatory requirements of Section 37.

The State argued that:

• The offence involved commercial quantity heroin.
• The High Court failed to examine the twin conditions.
• The respondent had criminal antecedents involving similar offences.
• The High Court’s approach was contrary to settled Supreme Court precedents such as State of Meghalaya v. Lalrintluanga Sailo and Union of India v. Ajay Kumar Singh.

Accordingly, it was argued that the bail order deserved to be set aside.

Defence Arguments

The respondent defended the High Court’s order. His principal submissions were:

• He was not named in the FIR.
• No recovery was made from him personally.
• He had been implicated solely on the basis of disclosure statements.
• Investigation had already been completed.
• He had spent approximately one year and seven months in custody.
• Only two out of twenty-four prosecution witnesses had been examined, making an early conclusion of the trial unlikely.

Based on these factors, the respondent argued that the grant of bail was justified.

Supreme Court’s Analysis

Difference Between Grant and Cancellation of Bail

The Court first observed that an appeal against grant of bail stands on a different footing from a cancellation of bail proceeding. Nevertheless, when a bail order is contrary to statutory requirements, appellate interference becomes justified.

Mandatory Nature of Section 37

The Court emphasised that Section 37 creates a special statutory restriction and must be strictly complied with in commercial quantity cases.

Referring to State of Meghalaya v. Lalrintluanga Sailo, the Court reiterated that courts are duty-bound to record satisfaction regarding both twin conditions before granting bail. The requirement is not merely procedural but substantive in nature.

The Court reproduced earlier observations that the expression “reasonable grounds” means something more than a prima facie assessment. It requires substantial and probable causes that justify a belief that the accused is not guilty of the alleged offence.

Reliance on Earlier Precedents

The judgment referred to several earlier decisions, including:

• Collector of Customs v. Ahmadalieva Nodira
• State of Meghalaya v. Lalrintluanga Sailo
• State by Inspector of Police v. B. Ramu
• Union of India v. Ajay Kumar Singh
• Union of India v. Namdeo Ashruba Nakade

These decisions consistently held that a liberal approach in NDPS bail matters is impermissible where Section 37 applies.

According to the Court, recording findings on the twin conditions is a sine qua non for granting bail in commercial quantity cases.

Why the High Court’s Order Was Set Aside

The Supreme Court found that the High Court had not discussed or examined the twin conditions at all. The High Court’s order was primarily based on:

• length of custody,
• possible delay in trial, and
• the principle that antecedents alone cannot determine bail.

However, the High Court failed to record satisfaction that:

1. the accused was not guilty; and
2. he was unlikely to commit offences while on bail.

Since these statutory requirements were completely overlooked, the Supreme Court held that the order could not be sustained.

Criminal Antecedents and Likelihood of Reoffending

The Supreme Court further noted that the respondent had antecedents involving offences of a similar nature under the NDPS Act. Consequently, the Court observed that it could not be concluded that he was unlikely to commit offences if released on bail. This directly affected the satisfaction of the second twin condition under Section 37.

Therefore, even on merits, the respondent failed to satisfy the statutory threshold for the grant of bail.

Prolonged Incarceration and Article 21

One of the notable aspects of the judgment is its discussion regarding prolonged incarceration. The Court acknowledged that in certain cases, prolonged custody may justify bail on constitutional grounds under Article 21. However, it pointed out that judicial approaches on this issue have not been uniform.

The Court referred to several decisions where bail outcomes varied despite similar periods of incarceration:

• Some accused were denied bail after more than two or three years in custody.
• Others were granted bail after comparable periods of detention.

The Court observed that there is presently no settled standard defining what constitutes “prolonged incarceration” for the purpose of granting bail under special statutes.

Reference to Larger Constitutional Questions

The judgment also referred to the recent case of Tasleem Ahmed v. State Government of NCT of Delhi, where questions concerning the interaction between:

• Article 21,
• prolonged incarceration, and
• statutory bail restrictions under special laws

have been referred for consideration.

The Court therefore refrained from making any extensive pronouncement on that issue in the present case.

Nevertheless, it observed that in cases involving threats to national interests, including organised drug trafficking, societal concerns must be accorded due weight.

Final Decision

The Supreme Court allowed the appeal filed by the State of Punjab.

The Court held that:

• The offence involved commercial quantity heroin.
• The High Court failed to examine the mandatory twin conditions under Section 37.
• The respondent had criminal antecedents of a similar nature.
• Custody of one year and seven months could not be considered extraordinarily long when the offence carried a potential punishment extending up to twenty years.

Accordingly, the High Court’s order granting bail was set aside, and the respondent’s release on bail was revoked.

Click Here to Read the Official Judgment

Conclusion

The Supreme Court’s ruling in State of Punjab v. Balraj Singh @ Billa (2026 INSC 618) firmly reiterates that the twin conditions under Section 37 of the NDPS Act are mandatory in all commercial quantity cases. Courts cannot adopt a liberal or routine approach while granting bail in such matters. Unless the court records satisfaction that the accused is not guilty and is unlikely to commit offences while on bail, release cannot be ordered.

The judgment strengthens the existing jurisprudence that narcotics offences involving commercial quantities occupy a special category where societal interests and legislative intent justify stricter standards for bail. At the same time, it highlights the continuing debate regarding prolonged incarceration and constitutional liberty, an issue that may receive further clarity from future decisions of the Supreme Court.

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