New Delhi: The Supreme Court has held that prolonged custody and anticipated delay in trial cannot override the statutory embargo under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, emphasizing that courts must record satisfaction on the twin conditions before granting bail in cases involving commercial quantities of narcotic drugs.
Justice Aravind Kumar, writing for a two-judge Bench also comprising Justice N.V. Anjaria, set aside two High Court orders granting bail to an accused allegedly involved in importing over 50 kilograms of cocaine, observing that the High Court failed to properly apply the stringent requirements of Section 37 of the NDPS Act.
The Court was hearing Criminal Appeals arising from Special Leave Petition (Crl.) Nos. 7768 of 2025 and 11097 of 2025 filed by the Union of India, challenging the Bombay High Court’s orders dated January 22, 2025, and March 12, 2025, granting bail to Vigin K. Varghese.
On October 5, 2022, the Directorate of Revenue Intelligence intercepted a refrigerated shipping container declared to contain pears, imported from South Africa in the name of M/s Yummito International Foods India Pvt. Ltd., of which the respondent was a Director. Upon examination on October 6–7, 2022, officers allegedly recovered fifty brick-shaped packets containing approximately 50.232 kilograms of cocaine concealed within cartons of green apples.
The prosecution alleged that statements recorded under Section 67 of the NDPS Act showed that the respondent admitted to ordering the consignment using his firm’s Import Export Code and supervising the clearance operations. Additionally, in a separate operation on October 2, 2022, approximately 198.1 kilograms of methamphetamine and 9.035 kilograms of cocaine were seized, allegedly traceable to the same network involving the respondent.
The respondent was arrested in October 2022 and remained in custody. The Special Court rejected his bail application on January 24, 2024, holding that the material prima facie disclosed his active role and that the fetters under Section 37 were attracted.
The Bombay High Court, however, granted bail on the grounds that although a large quantity of contraband was seized, there was prima facie no material showing that the applicant had knowledge of the cocaine; there were no antecedents; and the trial was unlikely to conclude soon. A subsequent order dated March 12, 2025, extended bail by invoking parity.
The Supreme Court identified critical flaws in the High Court’s approach. It observed:
“The High Court’s conclusion that there is no material to show that the applicant had any knowledge of the cocaine in the consignment has been arrived at without discussion of the statements of the respondent and circumstances relied upon by the prosecution.”
The Court further noted that the High Court failed to examine whether circumstances indicating that the respondent “placed the orders for import, controlled the logistics chain, coordinated with the overseas supplier, and was present when the consignment was opened” could prima facie indicate conscious control or involvement sufficient to attract the presumption of culpable mental state under Section 35 of the NDPS Act.
On the finding of no antecedents, the Court pointed out:
“The material before this Court includes the Union’s assertion that the respondent had already been apprehended in connection with an earlier seizure of approximately 198.1 kilograms of methamphetamine and 9.035 kilograms of cocaine allegedly imported through the same channel only days before the present seizure. That assertion is neither noticed nor answered in the impugned orders.”
Emphasizing the statutory significance of Section 37, the Court stated:
“The High Court then, on the strength of those premises, recorded a finding that there exist reasonable grounds to believe that the applicant is not guilty of the alleged offence, treating prolonged incarceration and likely delay as the justification for bail. Such a finding is not a casual observation. It is the statutory threshold under Section 37(1)(b)(ii).”
The Bench stressed that bail in NDPS commercial-quantity cases must rest on a careful appraisal:
“A conclusion of this nature, if returned without addressing the prosecution’s assertions of operative control and antecedent involvement, risks trenching upon appreciation of evidence which would be in the domain of the trial court at the first instance.”
On the special statutory regime, the Court reiterated:
“Offences involving commercial quantity of narcotic drugs stand on a distinct statutory footing. Section 37 enacts a specific embargo on the grant of bail and obligates the Court to record satisfaction on the twin requirements noticed above, in addition to the ordinary tests under the Code of Criminal Procedure.”
Finding the High Court’s analysis deficient, the Court held:
“The High Court has not undertaken the analysis of those twin requirements with reference to the material placed by the prosecution. The orders do not advert to the allegation regarding the respondent’s prior involvement in a seizure of narcotic drugs and psychotropic substances only days prior to the seizure forming the subject matter of the present complaint.”
The Supreme Court clarified that it was not appropriate for it to render factual findings at this preliminary stage:
“It would not be appropriate for this Court at the threshold stage itself to render findings on whether there are or are not reasonable grounds for believing that the respondent is not guilty, or on whether he is likely to commit any offence while on bail.”
The Court set aside both impugned orders and remitted the matter to the High Court for fresh consideration. It directed the High Court to consider: the parameters of Section 37 NDPS Act; the nature and quantity of contraband (50.232 kg cocaine); the role attributed to the respondent; the allegation of involvement in the earlier seizure (198.1 kg methamphetamine and 9.035 kg cocaine); the period of custody since October 2022; and the stage of trial.
As an interim measure, the Supreme Court allowed the respondent to continue on bail under existing conditions until the High Court decides the matter afresh within four weeks, adding a clear warning:
“Any infraction of the conditions of bail, including any attempt to contact witnesses or tamper with evidence, shall entitle the prosecuting agency to move for immediate cancellation.”
The Union of India was represented by Shri Raghavendra P. Shankar, Additional Solicitor General.
Case Title: Union of India vs. Vigin K. Varghese
