The Indian bail jurisdiction has time and again cleared that bail is a rule but jail is an exception as the same goes in tune with Article 21 of the Indian Constitution. It is highly known that section 439 of CrPC grants the power to the court for granting bail to an accused subject to the conditions laid down in the said section. But when it comes to the Narcotic Drugs and Psychotropic Substances Act, 1985 (“The Act”), the Act provides for section 37 for bail related matters. Hence, the power of the court to grant bail to an accused is subject to both- section 37 under the Act and section 439 of CrPC.  


Section 37 of the Act deals with granting bail to an accused booked under the Act. It lays down the two conditions for granting of bail that unless the Public Prosecutor (PP) has been given an opportunity to oppose the bail and upon such opposition by the (PP), the court is satisfied with reasonable grounds that the accused is innocent of such offence and will not commit any offence as well, the court should not grant bail.

Interestingly, in bail proceedings, the burden is shifted to the accused to prove that he/she is innocent. The reasoning for such reversed bail jurisdiction is principally based upon section 35 of the Act as it lays down the principle of “presumption of culpable mental state” meaning thereby that intention is presumed upon the accused under the Act. Hence, to secure bail, an accused will have to prove that he/she does not have such mental state or intention to commit the alleged offence.


In the case of Union of India vs. Thamisharasi, 1995, the court categorically stated that while under CrPC the burden is on the prosecutor to prove that the accused is guilty and hence should be denied the right of bail; under Section 37 of the NDPS Act, the burden is on the accused to prove that he is not guilty to be able to avail the right of bail.

In Union of India vs. Md. Nawaz Khan, 2021 the Apex Court reiterated that the test to be applied for granting bail is whether there exists reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any such offence while on bail.

In Union of India vs. Shiv Shanker Kesar, 2007, the Apex Court clarified the meaning of the term “reasonable grounds”. It held that the expression connotes something more than prima facie grounds. The term connotes substantial probable causes for believing that the accused is innocent and the same should also point to existence of facts that are enough to justify the innocence of the accused.

In Union of India v. Prateek Shukla, 2021, the Apex Court cancelled the bail that was granted by the High Court of Allahabad stating that there was a non-application of mind and untoward acknowledgement of the seriousness of the offence involved given that the accused was charged under the NDPS Act.

Hence, the court has time and again showed stringent attitude which is very much important for the nature of crime with which the act deals with. This particular legislation must be seen as an example as to how stringent the bail provisions must be if the offences involved in it are grave affecting the public safety and conscience.



·         Narcotic Drugs and Psychotropic Substances Act, 1985.

·         Code of Criminal Procedure, 1973.

·         Union of India v. Md. Nawaz Khan, 2021 SCC OnLine SC 782.

·         Union of India v. Prateek Shukla, (2021) 5 SCC 430.

·         Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798.

·         Union of India v. Thamisharasi, (1995) 4 SCC 190.



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