Offences Involving Commercial Quantity Of Drugs Stand On Distinct Statutory Footing; S.37 NDPS Act Enacts Specific Embargo On Grant Of Bail: Supreme Court

The appeals before the Apex Court were directed against the orders of the Bombay High Court granting bail to the respondent accused on prosecutions instituted by the Directorate of Revenue Intelligence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The first order related to the seizure of approximately 50.232 kilograms of Cocaine imported from South Africa in the name of M/s Yummito International Foods India Pvt. Ltd. of which the respondent was a Director. The second order granted bail on the ground of parity in a connected prosecution arising from a seizure effected within a few days of the first.

The Division Bench of Justice Aravind Kumar and Justice N.V. Anjaria held, “This Court ordinarily shows deference to the discretion exercised by the High Court while considering the grant of bail. However, 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.”

AOR Gurmeet Singh Makker represented the Appellant while AOR Aaditya Aniruddha Pande represented the Respondent.

Factual Background

In the year 2022, the Officers of the Directorate of Revenue Intelligence, acting on specific information, identified a refrigerated shipping container declared to contain pallets of pears, imported from South Africa in the name of M/s Yummito International Foods India Pvt. Ltd. The respondent was stated to be a Director and the operative mind of said concern. Upon opening the said container and segregating the cartons, officers allegedly recovered fifty brick-shaped white packets concealed within cartons of green apples (pears) that were intermixed with the declared consignment of pears. On weighing, these packets were found to weigh approximately 50.232 kilograms.

In a separate operation, approximately 198.1 kilograms of Methamphetamine and 9.035 kilograms of Cocaine had been seized, allegedly traceable to the same network involving the respondent. A separate complaint in respect of that seizure was filed before the Special Court for NDPS cases. The respondent was arrested in October 2022 and has remained in custody since then. Upon completion of the investigation, a complaint came to be filed before the Special Court. The application for bail preferred by the respondent was rejected, holding that the material prima facie disclosed his active role and that the fetters of Section 37 were attracted. The Respondent was later granted bail. The Union of India assailed both the orders in the appeals before the Apex Court.

Reasoning

The Bench noted that the High Court, on the strength of those premises, recorded a finding that reasonable grounds existed to believe that the applicant was 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) which would disentitle the discretionary relief and grant of bail must necessarily rest on careful appraisal of the material available. 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 trial court at first instance”, it stated.

On a perusal of the facts of the case, the Bench noted that the High Court had not undertaken the analysis of those twin requirements under section 37 of the NDPS Act with reference to the material placed by the prosecution. “The orders dated 22.01.2025 and 12.03.2025 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, nor do they engage with the prosecution’s assertion as to the respondent’s role in arranging, importing, clearing and supervising the consignments. The omission to consider these factors bears directly upon the statutory satisfaction required by Section 37(1)(b)”, it stated.

As per the Bench, the matter was required to be remitted to the High Court for fresh consideration of the respondent’s prayer for bail, keeping in view the parameters of Section 37 of the NDPS Act, the nature and quantity of contraband alleged to have been seized including 50.232 kilograms of Cocaine, the role attributed to the respondent in the said import. The Bench further highlighted that other considerations included the allegation of his involvement in an earlier seizure of 198.1 kilograms of methamphetamine and 9.035 kilograms of cocaine in early October 2022, the period of custody undergone since October 2022, and the stage of trial before the Special Court.

Setting aside the impugned orders, the Bench remitted the matters to the Bombay High Court for fresh consideration of the respondent’s prayer for bail. “The High Court shall, after affording an opportunity of hearing to both the sides and upon adverting to the statutory requirements of Section 37 and to the relevant material on record, pass a reasoned order”, it directed.

The Bench disposed of the appeal by concluding, “Until the High Court takes a decision, and purely as an interim arrangement, the respondent shall continue to have the benefit flowing from impugned orders including the terms and conditions of bail as presently operative.”

Cause Title: Union of India v. Vigin K. Varghese (Neutral Citation: 2025 INSC 1316)

Appearance

Appellant: AOR Gurmeet Singh Makker

Respondent: AOR Malak Manish Bhatt, Advocates Arshdeep Singh Khurana, Neena Nagpal, Vishvendra Tomar, Rohan Tewari, AOR Aaditya Aniruddha Pande, Siddharth Dharmadhikari, Shrirang B. Varma, Bharat Bagla, Sourav Singh,Aditya Krishna, Adarsh Dubey

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