State of Kerala v. Rajesh: the strict Section 37 NDPS bail standard

The facts in brief

The appeals arose from two connected excise cases in Thiruvananthapuram involving hashish oil — a substance in which anything above one kilogram is a commercial quantity under the Central Government's notification. In Crime No. 14/2018, the accused were found in joint possession of 10.202 kg of hashish oil together with currency of over thirteen lakh rupees, and were charged under Sections 20(b)(ii)(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985. In the connected Crime No. 19/2018, two of the same respondents were found in possession of a further 1.800 kg of hashish oil and charged under Section 20(b)(ii)(c).

The Sessions Court had refused post-arrest bail in reasoned orders, recording that there was prima facie material to presume commission of the offences. On appeal, a Single Judge of the High Court of Kerala granted post-arrest bail on 10 May 2019 — in one branch without even adverting to Section 37, and in the other referring to the provision but treating the accused's long judicial custody and the completion of investigation as sufficient. When the State moved under Section 482 CrPC to recall those orders, the High Court dismissed the application on 12 June 2019, reasoning that even an erroneous order could not be reconsidered by the same court and that the State's remedy lay before a superior forum.

The State of Kerala carried both grievances to the Supreme Court, where a two-judge bench of Justices Indu Malhotra and Ajay Rastogi heard the appeals. Justice Rastogi delivered the judgment on 24 January 2020.

The statutory bar

Section 37 makes every offence under the NDPS Act cognizable and non-bailable, and — for the graver offences, including those involving a commercial quantity — layers an additional bar on top of the ordinary law of bail. A person accused of such an offence "shall not be released on bail" unless two conditions are met: the Public Prosecutor is given an opportunity to oppose the application; and, where the Prosecutor opposes it, the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offence while on bail.

These limitations operate in addition to the constraints of the Criminal Procedure Code. Section 37 opens with a non-obstante clause and is cast in the negative — it presumes against release and lifts the bar only when the twin conditions are affirmatively satisfied. The conditions are cumulative, not alternative: if either fails, the ban on bail operates.

What the Court held

The twin conditions are mandatory and their satisfaction must be recorded

The bench treated Section 37 not as a discretionary factor to be weighed but as a legislative mandate that circumscribes the very jurisdiction to grant bail. A court cannot enlarge an accused in a commercial-quantity case unless it can, and does, record satisfaction of both limbs. The decisive failure of the High Court, the Court found, was that it never recorded the finding the statute requires.

That framing matters. The satisfaction contemplated by Section 37 is not an implicit by-product of a bail order; it is a precondition that must appear on the face of the reasoning. A bail order silent on the twin conditions — or one that gestures at custody duration and completed investigation while bypassing the statutory test — does not discharge the court's obligation.

"Reasonable grounds" means substantial probable cause

The heart of the judgment is its reading of the phrase "reasonable grounds." The Court refused to equate it with the low threshold of a prima facie case. Reasonable grounds demand materials of a higher order — facts and circumstances sufficient in themselves to justify a belief in the accused's innocence of the very offence charged.

This is the crisp modern statement of a demanding standard. Prima facie grounds ask only whether a case is arguable; substantial probable cause asks whether the record positively supports the belief that the accused is not guilty. In a commercial-quantity prosecution, where the statutory presumptions under the Act already tilt against the accused, that is a formidable barrier — and deliberately so.

A liberal approach is uncalled for

The Court located the High Court's error in a misunderstanding of the object of Section 37. Parliament had layered these conditions onto the ordinary bail regime precisely to prevent the routine enlargement of those accused of serious narcotics offences, whose release, the Court observed (drawing on Union of India v. Ram Samujh), carries a distinct social hazard. The High Court had "completely overlooked the underlying object of Section 37," and its liberal approach to bail under the NDPS Act was, the Court held, "indeed uncalled for."

Disposition

Having found the mandatory finding missing, the Court allowed the appeals, set aside the High Court's bail orders, cancelled the bail bonds and directed the respondents to be taken into custody. It also directed the trial court to proceed and expedite the trial. Ancillary arguments — that bail granted to co-accused should shield these respondents, and that the accused had been falsely implicated by a colleague of a convicted excise official — were rejected as, respectively, of no consequence to the rigour of Section 37 and mere conjecture better ventilated at trial.

Where it sits in the Section 37 cluster

Rajesh is the landmark anchor of the strict reading of Section 37 — the compact restatement that later benches reach for when they want to hold the line against reflexive bail in commercial-quantity cases. It is habitually paired on the strict side with Narcotics Control Bureau v. Mohit Aggarwal (2022), which pressed the standard further by insisting that the "not guilty" satisfaction be formed on the material against the specific accused and cautioned against a merciful or elastic application of the test.

That severity is not the whole picture. The counterweight is Mohd. Muslim v. State (NCT of Delhi) (2023), which read Section 37 against the Article 21 guarantee and held that the twin conditions cannot become an instrument of indefinite incarceration where trials crawl — the "reasonable grounds" enquiry is limited and does not license a mini-trial, and prolonged pre-trial detention itself engages the right to a speedy trial. The two lines are not in conflict so much as in tension: Rajesh fixes the threshold, Mohd. Muslim refuses to let the threshold defeat liberty when the system fails to try the accused within a reasonable time.

Read alongside the general bail jurisprudence — where the Satender Kumar Antil framework expressly slots special statutes such as the NDPS Act into a category governed by their own stringent tests — Rajesh supplies the content of that special test. And the strict merits standard it lays down sits on a different plane from the constitutional discipline surrounding the arrest itself, the subject of Dr. Rajinder Rajan v. Union of India: Section 37 governs the merits of bail once the application is properly before the court, while the grounds-of-arrest requirement governs the legality of the detention regardless of the merits.

Why it still matters

For any practitioner arguing bail in a commercial-quantity NDPS case, Rajesh is the provision's operating manual. It tells the court what it must do — record a finding on both limbs — and what "reasonable grounds" actually demands: not a plausible defence, but substantial probable cause pointing to innocence. It warns appellate courts against the instinct to grant bail on the softer considerations of custody length or completed investigation without confronting the statutory test.

Its limits are equally instructive. Rajesh fixes a threshold; it does not authorise indefinite detention, and the privacy and dignity concerns that surface in NDPS bail conditions confirm that even a strict bail regime must operate within constitutional bounds. The enduring contribution of Rajesh is to have stated, in a single clean passage, the standard Section 37 sets — higher than prima facie, mandatory in its application, and indifferent to the pull of a liberal instinct that Parliament, in this field, chose to displace.

Related on Valkya

• Narcotics Control Bureau v. Mohit Aggarwal: "credible and plausible" grounds under Section 37
• Mohd. Muslim v. State (NCT of Delhi): Section 37, delay and Article 21 bail

Sources

1. Supreme Court of India — State of Kerala v. Rajesh, Criminal Appeal Nos. 154–157 of 2020, judgment dated 24 January 2020 (official judgment PDF): main.sci.gov.in
2. LiveLaw — "Liberal Approach In Granting Bail In NDPS Uncalled For, Says SC"
3. National Narcotics Coordination Portal (Ministry of Home Affairs) — State of Kerala vs Rajesh judgment text: narcoticsindia.nic.in