State of Punjabv.Balraj Singh @ Billa

Legal Analysis: State of Punjab vs Balraj Singh @ Billa

Citation: 2026 INSC 618

Court: Supreme Court of India (Criminal Appellate Jurisdiction)

Bench: A Division Bench comprising Justice Sanjay Karol & Justice Nongmeikapam Kotiswar Singh

Date of Decision: June 02, 2026

Nature of Judgment: Criminal Appeal arising out of Special Leave Petition (Crl.) No. 896 of 2026 against the judgment and order dated 15.10.2025 passed by the High Court of Punjab and Haryana at Chandigarh in CRM-M No. 46383 of 2025.

Synopsis of the Judgment

The respondent, Balraj Singh @ Billa, was arraigned as an accused in connection with FIR No. 06 dated 10.01.2024 registered under Section 21(c)/29/61 and 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), involving recovery of 1.465 Kg of heroin (commercial quantity) from co-accused persons. The respondent’s role emerged from the disclosure statement of co-accused that he was operating a drug trafficking network from inside jail using illegal mobile phones. The Special Court rejected his bail application. However, the High Court granted regular bail, observing that antecedents alone cannot be the basis for refusal and relying on the period of custody and likelihood of trial taking considerable time. The Supreme Court allowed the State’s appeal, holding that the High Court had completely ignored the mandatory twin conditions under Section 37 of the NDPS Act, which require the court to record satisfaction that there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offence while on bail. The Court noted that the case involved commercial quantity, the respondent had three antecedents of similar nature, and incarceration of 1 year 7 months did not constitute prolonged incarceration warranting bail. The impugned order was set aside, and the respondent was directed to remain in custody.

1. Basic Information of the Judgment

Case Title: State of Punjab v. Balraj Singh @ Billa

Citation: 2026 INSC 618

Criminal Appeal No.: Arising out of SLP (Crl.) No. 896 of 2026

Bench: Division Bench (Justice Sanjay Karol & Justice Nongmeikapam Kotiswar Singh)

Date of Decision: June 02, 2026

Court: Supreme Court of India (Criminal Appellate Jurisdiction)

Impugned Order: Judgment and order dated 15.10.2025 of the High Court of Punjab and Haryana at Chandigarh in CRM-M No. 46383 of 2025 granting regular bail to the respondent.

2. Legal Framework

Major Laws and Provisions Involved

• Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) – Section 21(c) (punishment for commercial quantity of heroin/diacetylmorphine), Section 29 (abetment and criminal conspiracy), Section 37 (offences to be cognizable and non-bailable – twin conditions for grant of bail), Section 61 (confiscation), Section 85 (liability of persons who knowingly allow premises to be used for commission of offence).

• Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) – Section 483 (provisions for bail – analogous to former CrPC).

• Constitution of India, 1950 – Article 21 (right to life and personal liberty, including right to speedy trial and protection against prolonged incarceration).

Key Precedents Cited and Applied

• State of Meghalaya v. Lalrintluanga Sailo & Anr. (2024 SCC OnLine SC 1236) – Held that consideration of twin conditions under Section 37 of NDPS Act is essential; recording a finding mandated under Section 37 is sine qua non for granting bail; liberal approach ignoring the mandate is impermissible.

• Union of India v. Ajay Kumar Singh (2024 SCC OnLine SC 789) – Reiterated that satisfaction of conditions under Section 37(1)(b)(ii) is mandatory in cases involving commercial quantity.

• Collector of Customs v. Ahmadalieva Nodira (2004) 3 SCC 549 (Three-Judge Bench) – Held that "reasonable grounds" under Section 37(1)(b)(ii) means something more than prima facie grounds; it contemplates substantial and probable causes for believing that the accused is not guilty.

• State by the Inspector of Police v. B. Ramu (2024 SCC OnLine SC 432) – Reiterated that satisfaction of conditions under Section 37 is mandatory while entertaining bail prayer involving commercial quantity.

• Union of India v. Namdeo Ashruba Nakade (2025 SCC OnLine SC 3049) – Observed that mandatory nature of Section 37 cannot be dispensed with; when accused faces punishment of ten to twenty years rigorous imprisonment, it cannot be said that incarceration is unreasonably long.

• Ashok Dhankad v. State NCT of Delhi (2024 SCC OnLine SC 456) – Recognised that appeal against grant of bail and application for cancellation of bail stand on different footings.

• Harpreet Singh Talwar @ Kabir Talwar v. State of Gujarat (2025 INSC 662) – Bail not granted after 2 years 9 months incarceration in NDPS and UAPA case.

• Rabi Prakash v. State of Odisha (2023 SCC OnLine SC 1109) – Bail granted after 3 years 6 months incarceration.

• Tasleem Ahmed v. State Govt. of NCT of Delhi (Reference order) – Question concerning approach of constitutional courts in bail matters under special statutes where Article 21, prolonged incarceration and statutory restrictions intersect has been referred to a larger bench.

3. Relevant Facts

On 10.01.2024, the police set up a checkpoint at the bridge on Canal Road, Village Veeram. Upon seeing the police party, a Mahindra XUV 300 car bearing registration No. UP-15-DD-6521 attempted to flee but switched off and stopped on the katcha side of the road. The driver identified himself as Gurjit Singh @ Geetu and the other occupant as Sukhwinder Singh @ Gora.

Notice under Section 50 of the NDPS Act was issued to them. The Deputy Superintendent of Police arrived to conduct the search. Consent memos were prepared and signed. Upon search, a total of 1.465 Kg of heroin was recovered from their possession. The contraband was weighed, sealed, and seized after compliance with Section 50. The FSL report confirmed the substance as diacetylmorphine/heroin.

The case against the respondent, Balraj Singh @ Billa, arose from a disclosure statement made by the co-accused on 11.01.2024. The co-accused disclosed that the respondent had directed them to collect the heroin from the canal area and keep it for further supply on his instructions, while he was lodged in Central Jail, Goindwal Sahib. Pursuant thereto, the respondent was arrayed as an accused vide DDR dated 11.01.2024. Investigation further revealed that the respondent was operating a drug trafficking network from inside jail using illegal mobile phones.

The respondent preferred a bail application before the Ld. Judge Special Court, Tarn Taran, which was numbered as B.A. 1868/2025 and rejected on 03.07.2025. He then preferred an appeal before the High Court of Punjab and Haryana.

The High Court, vide impugned order dated 15.10.2025, granted regular bail to the respondent. The High Court observed that antecedents alone cannot be the basis for refusal of bail and relied upon the period of custody and the likelihood of the trial taking considerable time.

It is a matter of record that in relation to the very same FIR, all three accused persons had preferred applications for bail under Section 483 of BNSS, which were allowed. However, this Court, vide orders dated 24.04.2026 in Crl. Appeal @ SLP (Crl.) No. 5075 of 2026 and Crl. Appeal @ SLP (Crl) No. 5020 of 2026, had already set aside the grant of bail to the other two accused persons.

By interim order dated 07.04.2026, this Court directed the respondent to surrender, which he did as evident from affidavit dated 09.04.2026.

4. Issues

Issue No. 1: Whether the High Court, while granting bail to an accused involved in an offence under the NDPS Act involving commercial quantity of narcotic drugs, is required to consider and record satisfaction on the twin conditions mandated under Section 37(1)(b)(ii) of the NDPS Act.

Issue No. 2: Whether the impugned order of the High Court granting bail can be sustained when there is no reference to or consideration of the twin conditions under Section 37 of the NDPS Act.

Issue No. 3: Whether the existence of criminal antecedents of similar nature under the NDPS Act is relevant to the satisfaction that the accused is not likely to commit any offence while on bail under Section 37(1)(b)(ii).

Issue No. 4: Whether incarceration of 1 year and 7 months, in a case where the maximum sentence is twenty years, constitutes "prolonged incarceration" warranting grant of bail under Article 21 of the Constitution of India.

Issue No. 5: Whether this Court can set aside an order granting bail when the High Court has failed to apply the mandatory provisions of Section 37 of the NDPS Act.

5. Ratio Decidendi

A. The High Court was mandatorily required to consider the twin conditions under Section 37 of the NDPS Act and its failure to do so renders the impugned order unsustainable (Paras 12-17).

The Court examined Section 37 of the NDPS Act, which provides that for offences involving commercial quantity, no person accused of such offence shall be released on bail unless: (i) the Public Prosecutor has been given an opportunity to oppose the application, and (ii) where the Public Prosecutor opposes, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

Relying on the Constitution Bench decision in Ahmadalieva Nodira, the Court noted that "reasonable grounds" means something more than prima facie grounds; it contemplates substantial and probable causes for believing that the accused is not guilty. The decisions in Lalrintluanga Sailo, B. Ramu, and Ajay Kumar Singh consistently hold that recording a finding mandated under Section 37 is sine qua non for granting bail to an accused under the NDPS Act, especially in cases involving commercial quantity.

Upon a bare perusal of the impugned order dated 15.10.2025, the Court found that there was no consideration whatsoever by the High Court of the twin conditions under Section 37. The High Court had merely observed that antecedents alone cannot be the basis for refusal and relied upon the period of custody and likely delay in trial. This approach completely ignored the mandatory statutory framework. Therefore, the impugned order could not be sustained.

B. The respondent failed to satisfy the twin conditions under Section 37 (Paras 18-19).

The Court proceeded to examine the respondent's case against the twin conditions. First, regarding the condition that there are reasonable grounds for believing the accused is not guilty: the respondent had three antecedents of similar nature under the NDPS Act. Moreover, his role was revealed through the disclosure of co-accused, and investigation showed he was operating a drug trafficking network from inside jail using illegal mobile phones. These circumstances did not support a reasonable belief of innocence.

Second, regarding the condition that the accused is not likely to commit any offence while on bail: given the respondent's criminal antecedents of the very same nature under the NDPS Act and the fact that he continued to operate a drug network even while lodged in jail, the Court held that it could not be said that he is not likely to commit such an offence while on bail.

C. Incarceration of 1 year and 7 months, in a case with maximum sentence of twenty years, does not warrant grant of bail on the ground of prolonged incarceration (Para 19-22).

The Court noted that the respondent had only undergone 1 year and 7 months of incarceration, whereas if found guilty, a maximum sentence of twenty years may be imposed. Therefore, it could not be said that he had suffered incarceration for a long period warranting interference in view of Article 21 of the Constitution.

The Court acknowledged that prolonged incarceration can, in appropriate cases, justify grant of bail even under special statutes. However, the Court observed that the application of the principle of prolonged incarceration is not uniform across decisions. The Court referred to a chart of decisions by coordinate benches, which showed conflicting outcomes. For instance, in Harpreet Singh Talwar, bail was not granted after 2 years 9 months; in Union of India v. Vigin K. Varghese, bail was set aside after more than 3 years; in Rabi Prakash, bail was granted after 3 years 6 months; in Namdeo Ashruba Nakade, bail was set aside after more than 2 years.

Significantly, the Court noted that the question concerning the approach of constitutional courts in bail matters under special statutes where Article 21, prolonged incarceration, and statutory restrictions intersect has been referred to a larger bench in Tasleem Ahmed v. State Govt. of NCT of Delhi. In view of this reference, the Court did not deliberate on the issue further, except to state that paramount consideration is the interest of justice for all, and should there be any conflict between the sovereignty of the country and personal liberty, the former shall prevail, particularly when a war is waged against the nation in the form of supply of narcotics.

D. Appeal against grant of bail stands on a different footing from cancellation of bail, but the High Court's non-application of Section 37 justifies interference (Para 12).

The Court recognised the principle from Ashok Dhankad that an appeal against grant of bail and an application for cancellation of bail stand on a different footing. However, in the present case, the interference was warranted not merely because the High Court exercised its discretion differently, but because the High Court failed to exercise its discretion in accordance with the mandatory statutory requirements of Section 37. The complete omission to consider the twin conditions constituted an error of law warranting interference.

6. New Legal Principles Established / Reiterated

First, the judgment reiterates the well-settled position that in cases involving commercial quantity of narcotic drugs, the court considering a bail application must explicitly record its satisfaction on the twin conditions under Section 37(1)(b)(ii) of the NDPS Act. A mere observation about the period of custody or delay in trial, without any finding on reasonable grounds for believing the accused is not guilty and that he is not likely to commit an offence while on bail, is insufficient and renders the bail order legally unsustainable.

Second, the judgment reaffirms that the expression "reasonable grounds" under Section 37(1)(b)(ii) means something more than prima facie grounds. It contemplates substantial and probable causes for believing that the accused is not guilty. The court cannot grant bail based on sympathy or a general observation about delay in trial.

Third, the judgment establishes that criminal antecedents of similar nature under the NDPS Act are directly relevant to the second condition under Section 37(1)(b)(ii) – whether the accused is likely to commit an offence while on bail. If the accused has previous convictions or pending cases under the NDPS Act, the court must consider this as a factor militating against the satisfaction that he is not likely to commit an offence.

Fourth, the judgment clarifies that the mere fact that a co-accused has been granted bail does not entitle another accused to bail, especially when the roles are different (e.g., one is a carrier while the other is a kingpin operating from jail). Each bail application must be considered on its own merits and in light of the specific role of the accused.

Fifth, on the issue of prolonged incarceration, the judgment acknowledges the lack of uniformity in judicial decisions and notes that the matter has been referred to a larger bench in Tasleem Ahmed. Pending such clarification, courts must exercise caution and not grant bail solely on the ground of incarceration duration without considering the statutory restrictions under Section 37. The judgment also states that where there is a conflict between national sovereignty (combating drug trafficking) and personal liberty, the former shall prevail.

7. Court’s Examination and Analysis of Concepts

The Court first addressed the nature of the appeal. It recognised that an appeal against grant of bail is distinct from an application for cancellation of bail, but clarified that where the High Court has failed to apply mandatory statutory provisions, interference is warranted.

Thereafter, the Court examined the factual matrix. The recovery in the case was 1.465 Kg of heroin, which is undisputedly a commercial quantity. The respondent was not present at the spot of recovery, but was implicated based on the disclosure statement of the co-accused and the investigation revealing his operation of a drug network from inside jail. The Court noted that the respondent had three antecedents of similar nature under the NDPS Act.

The Court then analysed Section 37 of the NDPS Act. It quoted the provision in full and emphasised the non-obstante clause – "Notwithstanding anything contained in the Code of Criminal Procedure" – which gives Section 37 an overriding effect over the general bail provisions of the CrPC (and now BNSS). The Court noted that the limitations on granting bail under Section 37 are in addition to the limitations under the Code of Criminal Procedure.

Relying on Ahmadalieva Nodira, the Court explained that the legislature, in its wisdom, has imposed stringent conditions for grant of bail in NDPS cases involving commercial quantity because of the serious threat posed by drug trafficking to society. The requirement of "reasonable grounds for believing that he is not guilty" is a high threshold that the accused must cross. The court must be satisfied that there is a substantial and probable cause to believe the accused is innocent. This is not a prima facie standard; it is a stricter standard.

The Court then examined the impugned order of the High Court. It observed that the High Court had simply stated: "antecedents alone cannot be the basis for refusal of prayer of bail" and then relied upon the period of custody and the likelihood of trial taking considerable time. There was no discussion whatsoever on whether there were reasonable grounds for believing the respondent was not guilty. There was no discussion on the likelihood of the respondent committing an offence while on bail, despite the respondent having three antecedents and being accused of operating a drug network from jail. The Court held that this was a clear violation of the mandate of Section 37.

The Court then independently assessed the respondent's case against the twin conditions. On the first condition, the Court held that the existence of three antecedents, coupled with the specific allegation that the respondent was directing drug operations from inside jail, meant that there were no reasonable grounds for believing he was not guilty. On the second condition, the Court held that the same antecedents and the fact that he continued criminal activity even while incarcerated indicated that he was likely to commit offences if released on bail.

On the issue of prolonged incarceration, the Court noted that the respondent had served only 1 year and 7 months. The Court contrasted this with the maximum sentence of twenty years. It observed that when an accused faces a sentence of ten to twenty years, incarceration of less than two years cannot be considered "prolonged" so as to override the statutory mandate of Section 37. The Court also noted the conflicting decisions on this issue and the pending reference in Tasleem Ahmed, and therefore refrained from laying down any general principle, but clarified that in this specific case, the duration did not justify bail.

Finally, the Court allowed the appeal, set aside the High Court's order, and directed that the respondent remain in custody.

8. Critical Analysis

Strengths: The judgment strongly reinforces the mandatory nature of Section 37 of the NDPS Act, which is crucial in the context of the drug trafficking epidemic. By emphasising that the High Court must explicitly record satisfaction on the twin conditions, the judgment provides clear guidance to lower courts and prevents the dilution of the statutory safeguard through casual or formulaic orders. The Court's observation that "reasonable grounds" means more than prima facie grounds, drawn from the three-Judge Bench decision in Ahmadalieva Nodira, is a correct reiteration of the law.

The judgment also correctly highlights the relevance of criminal antecedents. In many NDPS cases, accused persons are repeat offenders, and the second condition of Section 37 (likelihood of committing an offence while on bail) is specifically designed to address this. The Court's insistence that antecedents cannot be ignored is a necessary check on the tendency of some courts to grant bail solely based on the period of custody.

The recognition of the lack of uniformity in decisions on "prolonged incarceration" and the reference to the larger bench in Tasleem Ahmed is an honest acknowledgment of a systemic problem. Different benches have applied different standards, leading to inconsistency and forum shopping. The larger bench reference may finally bring clarity to this important area.

Potential concerns: The judgment's statement that "should there be any conflict between the sovereignty of country and personal liberty, undoubtedly, the former shall prevail, particularly when a war is waged against the nation" is problematic from a constitutional perspective. The Constitution does not establish a hierarchy where national sovereignty automatically trumps personal liberty. Article 21 protects personal liberty against the State, and even in cases of national security, the courts have consistently held that any deprivation of liberty must be just, fair, and reasonable. While drug trafficking is undoubtedly a serious crime, characterising it as a "war against the nation" should not lead to the erosion of fundamental rights. The proper balance is struck by applying the statutory provisions strictly, not by subordinating liberty to sovereignty.

Another concern is that the Court did not squarely address the issue of disclosure statements. The respondent was implicated solely on the basis of a co-accused's disclosure statement under Section 27 of the Evidence Act (or analogous provision). The evidentiary value of such disclosure statements is weak, and courts have often held that they cannot form the sole basis for conviction. The Court, however, treated the disclosure as sufficient for the purpose of denying bail under Section 37. While the standard for bail is different from the standard for conviction, the Court could have provided some guidance on how disclosure statements should be evaluated at the bail stage.

The judgment also does not address the respondent's submission that he had no connection with the FIR and was falsely implicated. The Court dismissed this submission without discussion, relying on the disclosure statement and antecedents. Given that false implication is a common grievance in NDPS cases, a more nuanced approach might have been warranted.

Practical impact: This judgment will significantly curtail the grant of bail in NDPS cases involving commercial quantity, especially where the accused has antecedents. High Courts will now be compelled to explicitly record findings under Section 37, and any order that fails to do so will be set aside by the Supreme Court. The judgment also signals that incarceration of less than two years will rarely, if ever, be considered "prolonged" for the purpose of granting bail under the NDPS Act.

The judgment may also lead to increased litigation on the question of what constitutes "reasonable grounds for believing the accused is not guilty." Lower courts may adopt a stricter approach, requiring substantial evidence of innocence rather than merely noting the absence of recovery from the accused.

The reference to the larger bench in Tasleem Ahmed on the intersection of Article 21, prolonged incarceration, and statutory restrictions has now been highlighted by this judgment. The larger bench decision, when rendered, will have significant implications for all special statutes (NDPS, UAPA, PMLA, etc.) that impose restrictions on bail.

9. Final Outcome

The Criminal Appeal was allowed.

The impugned judgment and order dated 15.10.2025 passed by the High Court of Punjab and Haryana at Chandigarh in CRM-M No. 46383 of 2025 was set aside.

The bail granted to the respondent, Balraj Singh @ Billa, was cancelled.

The respondent was directed to remain in custody (having already surrendered pursuant to the interim order dated 07.04.2026).

Pending applications, if any, stood dismissed.

No order as to costs.

10. Practical Application

For a prosecutor or State counsel opposing bail in NDPS cases involving commercial quantity:

First, always bring Section 37 to the attention of the court and emphasise its mandatory nature. Cite Lalrintluanga Sailo, Ajay Kumar Singh, and this judgment to establish that the court must record satisfaction on the twin conditions. If the High Court order granting bail does not refer to Section 37 or does not explicitly record such satisfaction, the State can successfully challenge it before the Supreme Court.

Second, place on record the criminal antecedents of the accused. Argue that the second condition – "not likely to commit any offence while on bail" – cannot be satisfied if the accused has previous NDPS cases. The court must consider antecedents as a relevant factor.

Third, if the accused is alleged to have operated a drug network from inside jail, highlight this as evidence of both guilt (first condition) and likelihood of re-offending (second condition). The fact that the accused continued criminal activity even while incarcerated is a powerful argument against bail.

Fourth, if the accused has been incarcerated for less than two years (or even three years), argue that this does not constitute "prolonged incarceration" in the context of NDPS offences where the maximum sentence is ten to twenty years. Cite the chart of decisions from this judgment to show that bail has been denied even after longer periods.

For an accused or defence counsel seeking bail in NDPS cases involving commercial quantity:

First, recognise that Section 37 imposes a heavy burden. The court must be satisfied that there are reasonable grounds for believing the accused is not guilty. This means the defence must present substantial material to create such a belief – not just a bald denial.

Second, if no recovery was effected from the accused and the only link is a disclosure statement of a co-accused, argue that disclosure statements are weak evidence and cannot form reasonable grounds for belief of guilt. Cite the evidentiary value of disclosure statements under Section 27 of the Evidence Act (or BNSS) – they can only be used to discover facts, not as substantive evidence of conspiracy.

Third, if the accused has no criminal antecedents, emphasise this fact to satisfy the second condition. Argue that an accused with a clean record is unlikely to commit an offence while on bail.

Fourth, if the accused has been incarcerated for a long period (say, four years or more), argue that prolonged incarceration violates Article 21, even under special statutes. Note that in Rabi Prakash, bail was granted after 3 years 6 months. However, be aware that the law is not uniform, and the larger bench in Tasleem Ahmed is considering this issue. Pending that decision, advocate for a liberal interpretation favouring liberty.

For a High Court judge considering a bail application under Section 37 of the NDPS Act:

The judgment makes it clear that you must explicitly record your satisfaction on both conditions. A mere statement that "the accused has been in custody for X period" or "trial will take time" is insufficient. You must analyse the material on record and explain why there are reasonable grounds for believing the accused is not guilty, and why the accused is not likely to commit an offence while on bail.

If the accused has antecedents, you must consider them and explain why they do not (or do) militate against the second condition. If there is no recovery from the accused, you must evaluate the evidentiary value of the material that implicates him (e.g., disclosure statements, call records, etc.) and explain why it does or does not create reasonable grounds for belief of guilt.

If you are inclined to grant bail based on prolonged incarceration, be cautious – the law is unsettled, and the Supreme Court has noted the lack of uniformity. Record detailed reasons for why the specific period of incarceration in the case before you qualifies as "prolonged" in light of the maximum sentence and the nature of the offence.

For a legal researcher or law student studying NDPS bail jurisprudence:

This judgment is an important authority on the mandatory application of Section 37. Note the distinction between the standard under Section 37 ("reasonable grounds for believing not guilty") and the general bail standard under BNSS ("reasonable grounds for believing not guilty of an offence" under Section 483 is different – it allows bail for non-commercial quantities). Also note the ongoing reference in Tasleem Ahmed on prolonged incarceration – this is an area to watch for future developments.

11. Court Lines

Line 1 (Mandatory nature of Section 37 – Para 14, quoting Lalrintluanga Sailo):
"Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications."

Line 2 (Meaning of "reasonable grounds" – Para 14, quoting Ahmadalieva Nodira):
"This Court held that it means something more than the prima facie grounds and that it contemplates substantial and probable causes for believing that the accused is not guilty of the alleged offence."

Line 3 (Failure of High Court to consider Section 37 – Para 17):
"Upon a bare perusal of the impugned order, it is evident that there has been no consideration at all by the High Court on the twin conditions. In such a scenario, the impugned order cannot be sustained in the eyes of law."

Line 4 (Antecedents and likelihood of re-offending – Para 18):
"There are antecedents involving commission of offences of the very same nature under the NDPS Act, therefore it cannot be said that he is not likely to commit such an offence while on bail."

Line 5 (Prolonged incarceration – Para 19):
"Moreover, the respondent has only undergone 1 year 7 months, and if found guilty a maximum sentence of twenty years may be imposed upon him. Therefore, it cannot be said that he has suffered incarceration for a long period, warranting interference in view of Article 21 of the Constitution."

Line 6 (Conflicting decisions on prolonged incarceration – Para 20):
"While this Court has recognized on several occasions that prolonged incarceration warrants the grant of bail in view of Article 21 of the Constitution, we have noticed that the application thereof is not uniform."

Line 7 (Reference to larger bench – Para 22):
"However, we note that recently this Court in Tasleem Ahmed v. State Govt. of NCT of Delhi has referred the question concerning the approach of constitutional Courts in bail matters under special statutes, where 'Article 21, prolonged incarceration and statutory restrictions intersect'."

Line 8 (Sovereignty vs. personal liberty – Para 22):
"Should there be any conflict between the sovereignty of country and personal liberty, undoubtedly, the former shall prevail, particularly, when a war is waged against the nation, be it in the form of supply of narcotics."

12. Legal Strategy Insight

For a State counsel appealing a grant of bail in an NDPS case:

Do not file a cancellation of bail application (which requires showing supervening circumstances or that the accused has abused the liberty). Instead, file a special leave petition against the grant of bail itself. Argue that the High Court failed to apply the mandatory twin conditions of Section 37. As this judgment makes clear, the Supreme Court will interfere even in the absence of supervening circumstances if the High Court has ignored Section 37.

The strategy is to focus on the legal error – the non-application of Section 37 – rather than re-arguing the merits of the case. Present the impugned order to the Court and highlight the absence of any finding on the twin conditions. Cite this judgment and Lalrintluanga Sailo to establish that such an omission is fatal.

If the accused has antecedents, also argue that the second condition is not satisfied. If the accused operated from jail, emphasise the seriousness of the role.

For a defence counsel opposing the State's appeal in a similar case:

If the High Court did consider Section 37, however briefly, argue that the consideration was sufficient. The Supreme Court has not prescribed any particular form of words; what matters is substance. If the High Court recorded that the accused had been in custody for a long period and that there was no recovery from the accused, and then concluded that reasonable grounds exist for believing the accused is not guilty, that may be sufficient.

If the High Court did not explicitly refer to Section 37, argue that the omission is not fatal because the court's reasoning implicitly covers the conditions. However, this is a weak argument given the strong language in this judgment. Better to argue that the State's appeal should be dismissed because the accused has already surrendered (as in this case) and the appeal has become infructuous, or because the accused has undergone further incarceration pending appeal.

Also, draw attention to the pending reference in Tasleem Ahmed on prolonged incarceration. Argue that the law on this point is unsettled, and the Court should await the larger bench decision before setting aside the bail.

For a lawyer handling multiple NDPS bail applications (defence):

In cases where the accused has no antecedents and the only evidence is a disclosure statement, file the bail application with a detailed annexure of documents showing the weak evidentiary value of disclosure statements. Cite judgments holding that disclosure statements are not substantive evidence. Argue that therefore, there are reasonable grounds for believing the accused is not guilty.

If the accused has been in custody for more than three years, cite Rabi Prakash where bail was granted after 3 years 6 months. Acknowledge the conflicting decisions but argue that the trend favours grant of bail after prolonged incarceration, especially if the trial is unlikely to conclude soon.

If the accused is a first-time offender and the quantity is only slightly above the commercial threshold, argue for a liberal approach. The object of Section 37 is to prevent habitual offenders from continuing drug trafficking, not to punish small-time carriers or first-time offenders with pre-trial detention for years.

For a strategic litigation organisation challenging the NDPS bail regime:

The statement in para 22 – "should there be any conflict between the sovereignty of country and personal liberty, undoubtedly, the former shall prevail" – is constitutionally questionable. This could be the basis for a public interest litigation or a review petition arguing that it subverts the fundamental structure of the Constitution, where personal liberty is a fundamental right that cannot be subordinated to an amorphous concept of "sovereignty" without due process.

The proper framework is not a conflict between sovereignty and liberty, but a balance struck by Parliament through Section 37. Courts must apply Section 37 faithfully, but they cannot add a gloss that liberty is subordinate to sovereignty. This statement, if taken as a precedent, could be used to justify pre-trial detention for indefinite periods in the name of national security, which would violate Article 21.

The pending reference in Tasleem Ahmed provides an opportunity to intervene and argue for a clear, principled standard on when prolonged incarceration justifies bail even under special statutes. The intervention could propose a balancing test: the court should consider (i) the length of incarceration already undergone; (ii) the maximum possible sentence; (iii) the likely time for completion of trial; (iv) the nature of evidence against the accused; (v) the accused's antecedents; and (vi) any special circumstances (e.g., illness, age, family responsibilities). Only when these factors cumulatively show that continued detention is disproportionate should bail be granted.