Recently, the Supreme Court set aside the Andhra Pradesh High Court’s order granting bail in a commercial-quantity NDPS case, holding that the High Court failed to comply with the mandatory twin-conditions of Section 37. In a matter involving over 700 kg of ganja, the Court observed that allegations reflected organised trafficking and found no justification to dilute statutory safeguards.
Brief Facts:
According to the record, a large quantity of ganja, far exceeding the commercial-quantity threshold, was recovered from a lorry allegedly owned and driven by the accused. The prosecution claimed that concealed compartments had been fabricated beneath the vehicle to transport the contraband. The accused remained in custody for over a year while the trial had yet to commence. The High Court granted him bail, observing that investigation was complete, the chargesheet had been filed, and the trial was unlikely to begin soon. The High Court also relied on an affidavit by the accused’s brother, a sepoy in the Indian Army, who undertook to ensure the accused’s regular appearance.
Contentions:
The State, represented by the Additional Solicitor General, argued that the High Court granted bail without meeting the rigorous requirements under Section 37 of the NDPS Act, which mandates strict satisfaction regarding innocence and non-recurrence before bail can be granted in commercial-quantity cases. Reliance was placed on Narcotics Control Bureau v. Kashif, where the Supreme Court reiterated that “negation of bail is the rule and its grant an exception” in NDPS cases carrying a minimum sentence of ten years. It was submitted that in light of the quantity involved and the nature of the allegations, the High Court could not have waived the statutory restrictions.
Whereas, the counsel for the accused maintained that the High Court exercised its discretion after noting that the accused had spent nearly two years in custody and that the trial had not progressed even to the stage of framing charges. It was argued that the undertaking submitted by the accused’s brother, supported by service credentials, assured the Court of the accused’s continued presence. The High Court had also noted the willingness of the accused to share real-time mobile location with the investigating agency to address concerns of absconding.
Observations of the Court:
The Court began by underscoring the gravity of drug offences and the widening global and domestic challenge posed by substance abuse. Referring to international and national studies, the Court noted the alarming escalation of drug use and the corresponding societal impact.
The Court reiterated the mandatory nature of Section 37 requirements, stressing that bail cannot be granted in commercial-quantity cases unless the Court is satisfied that the accused is “not guilty of such offence and is not likely to commit any offence while on bail.” The Court relied on its earlier pronouncements holding that these findings are a sine qua non for release.
Turning to the facts, the Court observed that the allegations pointed to organised trafficking infrastructure. It recorded, “Though the Respondent-accused was in custody for one year four months and charges have not been framed, yet the allegations are serious inasmuch as not only is the recovery much in excess of the commercial quantity but the Respondent-accused allegedly got the cavities ingeniously fabricated below the trailer to conceal the contraband.” The Bench further noted, “Prima facie this Court is of the opinion that the Respondent-accused is involved in drug trafficking in an organized manner. Consequently, no case for dispensing with mandatory requirement of Section 37 of the NDPS Act is made out.”
On the reliance placed upon the affidavit of the accused’s brother, the Court held that the undertaking was legally irrelevant, observing, “If the Respondent were to abscond, his brother cannot be sent to prison. In India, the alleged sins of an accused cannot be visited on his brother or other family members.” The Court also clarified that custody of around one year and four months could not be treated as “unduly long” for offences carrying punishment ranging from ten to twenty years.
The decision of the Court:
Holding that the High Court erred in overlooking the statutory bar on bail under Section 37, the Supreme Court set aside the order granting bail. The criminal appeal was allowed, and the accused was directed to surrender within two weeks. All pending applications were disposed of.
Case Title: UNION OF INDIA Vs. NAMDEO ASHRUBA NAKADE
Case No.: SLP (Crl) No.9792/2025
Coram: Justice Manmohan and Justice N.V. Anjaria
Advocate for Petitioner: Adv. S D Sanjay (A.S.G.), Gurmeet Singh Makker (AOR), Rajat Nair, Mili Baxi, Akshay Amritanshu, Nisarg Choudhary, Pallav Mongia, Gurmeet Singh Makker (AOR)
Advocate for Respondent: Adv. Dilip Annasaheb Taur (AOR)
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