Ignoring Section 37 NDPS Act Mandate Renders Bail Perverse: Patna HC

In a stern rebuke to judicial oversight, the Patna High Court has cancelled the regular bail of two narcotics accused, ruling that any bail order passed in total disregard of the mandatory twin conditions under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is inherently perverse and unsustainable in law.

A Single Bench of Justice Sandeep Kumar heard the application filed by the Narcotics Control Bureau (NCB) seeking the cancellation of bail granted to two individuals by a Special NDPS Court. The Court scrutinized whether the lower court could have bypassed the rigorous statutory requirements for bail in cases involving commercial quantities of illicit substances.

Key Takeaways

Mandatory Compliance with Section 37

Orders granting bail in commercial quantity cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 must explicitly record satisfaction of the twin conditions, or they risk being declared a nullity.

Distinction in Bail Cancellation

Courts can annul bail orders based on original defects like illegality or perversity without needing to prove subsequent misconduct or misuse of liberty by the accused.

Scope of Conscious Possession

Joint possession under narcotics law is not restricted to physical custody on a person; it extends to luggage and items carried by co-travellers in a shared criminal enterprise.

Fraud on Court

Obtaining bail through findings that are demonstrably contrary to the official record constitutes a legal nullity that does not attract the bar of Section 362 of the Code of Criminal Procedure, 1973.

Judicial Scrutiny of Trial Court Findings

The Court noted that the Special Judge had granted bail on the erroneous premise that the accused were not arrested from the spot and that no recovery was made from them. However, the record indicated that one accused was intercepted with 1 kg of methamphetamine concealed in a pressure cooker, while heroin was recovered from the rented premises of the other. The Court observed that these findings were the "exact opposite" of what the official record stated.

The Court has the following directions:

"The bail granted to the opposite parties vide the impugned order dated 11.11.2024 is hereby cancelled and the bail bonds furnished by them also stand cancelled. The opposite parties shall surrender before the learned Trial Court within a period of two weeks from today, failing which the Senior Superintendent of Police, Muzaffarpur, shall take all necessary steps to secure their arrest."

The Court, in its reasoning, observed: "The most fundamental, infirmity in the impugned order is the complete absence of any reference to Section 37 of the NDPS Act. The case before the learned Court below was one of the recoveries of 1 kg. of methamphetamine, that is, twenty times the notified commercial quantity... No order granting bail could have been passed without the Court first recording its satisfaction thereunder. An order granting bail in a commercial quantity case in total disregard of Section 37 is perverse and unsustainable."

Ratio

An order granting bail in a case involving a commercial quantity of narcotics is legally unsustainable if it ignores the non-obstante mandate of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Furthermore, a High Court possesses the power to annul a bail order founded upon findings contrary to the record, as such an order is perverse and does not require evidence of supervening misconduct for its cancellation.

Background

The case originated from a secret tip-off leading to the interception of two suspects at Muzaffarpur Railway Station who were carrying 1 kg of methamphetamine. Subsequent investigations led to the recovery of heroin from the house of a third individual. Despite the commercial quantity involved, the Special Judge-cum-Special Judge, Muzaffarpur, granted bail on November 11, 2024, citing a lack of recovery and no spot arrest.

The NCB challenged this, relying on Union of India v. Rattan Mallik @ Habul ( "(2009) 2 SCC 624": 2009 CaseBase(SC) 358) and Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan ( "(2021) 10 SCC 100": 2021 CaseBase(SC) 1557) to argue that the rigors of Section 37 were ignored. The NCB also pointed out that a co-ordinate bench had already rejected the bail of a similarly placed co-accused in Criminal Miscellaneous No.3392 of 2025. The respondents cited Dolat Ram & Ors. v. State of Haryana ( "(1995) 1 SCC 349": 1995 CaseBase(SC) 241) and Himanshu Sharma vs. State of Madhya Pradesh ( "(2024) 4 SCC 222": 2024 CaseBase(SC) 316), arguing that bail once granted should not be cancelled without misuse of liberty. The High Court, following the principles in State of Karnataka v. Sri Darshan etc. ( "2025 SCC OnLine SC 1702": 2025 CaseBase(SC) 818) and Deepak Yadav vs. State of U.P. & Anr. ( "(2022) 8 SCC 559": 2022 CaseBase(SC) 869), held that perversity at the time of grant is a standalone ground for annulment.

Case Details:
Case No.: CRIMINAL MISCELLANEOUS No.69110 of 2025
Case Title: The Union of India through Md. Remiz Raiza, S.I/N.C.B/Patna Bihar v. Sanjeev Sahu and Anr.
Appearances:
For the Petitioner(s): Mr. Subodh Kumar Jha (Senior CGC), Mr. Arbind Kumar (CGC), Mr. Chandani Kumar (Advocate)
For the Respondent(s): Mr. Abhyanand (Advocate), Mr. Sumit Kumar (Advocate), Mr. S.M. Sudhanshu (Advocate), Dr. Bipin Chandel (Advocate)

Source: 2026 CaseBase(PAT) 2673