Introduction:

In the case of Jaswinder Singh alias Kala v. State of Punjab, the Punjab & Haryana High Court considered a regular bail application under Section 21-C of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The matter involved the recovery of commercial quantity of contraband—specifically 255 grams of heroin—and ₹4,70,000 allegedly derived from drug sales. The applicant had been implicated based on a disclosure statement made by a co-accused, Sahil. Justice Sumeet Goel delivered a detailed ruling that clarified the meaning and application of the term “not likely to commit any offence while on bail” under Section 37 of the NDPS Act. The Court not only granted bail but also explained how courts can determine the second pre-requisite condition under Section 37 for granting bail in cases involving commercial quantities. The decision is significant in balancing the legislative rigor of the NDPS Act with individual liberty guaranteed under Article 21 of the Constitution.

Arguments from the Petitioner (Jaswinder Singh alias Kala):

Represented by Advocate Mr. Ruhani Chadha, the petitioner argued that he had been in custody since April 21, 2025, and was also under judicial custody in another FIR for almost three years. The petitioner submitted that his implication in the present case was solely on the basis of the disclosure statement made by co-accused Sahil. Importantly, it was pointed out that the petitioner was already in jail at the time of the alleged recovery made from Sahil, and no recovery was made from the petitioner himself. Moreover, no mobile phone, call detail record (CDR), or banking transaction was available to demonstrate his connection to the contraband or to the co-accused. Counsel further argued that continued custody would be disproportionate and violative of the petitioner’s right to personal liberty. It was also submitted that the stringent requirements under Section 37 of the NDPS Act could be met in this case since there was no substantial material against the petitioner, and there was no reason to believe that he would commit any offence while on bail.

Arguments from the State of Punjab:

Appearing for the State, Additional Advocate General Mr. Durgesh Garg contended that the NDPS Act, particularly Section 37, imposes stringent conditions for granting bail in cases involving commercial quantity. The state emphasized that commercial quantity was involved in the present case (255 grams of heroin), and drug money amounting to ₹4,70,000 was recovered. The prosecution highlighted the gravity of the offence and the need to curb drug trafficking. It was argued that even though the petitioner was in jail when the recovery was made from the co-accused, the role of each accused has to be examined based on material gathered during investigation. The State also maintained that past antecedents and the potential of the petitioner to commit similar offences in the future cannot be ruled out given the seriousness of the charge.

Court’s Judgement and Reasoning:

Justice Sumeet Goel began the judgment by explaining the statutory scheme of Section 37 of the NDPS Act. He reiterated that in cases involving commercial quantity, bail cannot be granted unless the court is satisfied with two cumulative conditions: (i) there are reasonable grounds to believe that the accused is not guilty of such offence; and (ii) the accused is not likely to commit any offence while on bail. The Court emphasized that these conditions are to be read strictly given the legislative intent behind Section 37.

However, the Court undertook a nuanced examination of the phrase “not likely to commit any offence while on bail.” It clarified that the term “likely” is inherently ambiguous and requires contextual interpretation. The judgment observed that in the context of Section 37, “likely” should be understood as indicating a “reasonable probability” or “palpable probability,” rather than a mere theoretical or speculative chance. According to Justice Goel, this standard is necessary because predicting future conduct involves inherent uncertainty, and overly strict readings could result in denial of liberty in violation of constitutional protections.

The Court then addressed how antecedents may serve as an indicator of future behavior but should not be seen as conclusively determinative. Courts must adopt a holistic approach in such matters, carefully analyzing the nature of accusations, the material evidence on record, and the context of the alleged offence. In the present case, the Court observed that there was no recovery from the petitioner, no CDRs linking him to the co-accused, and no financial transactions between them. Additionally, the petitioner had already spent a significant time in custody—nearly three years in another FIR and over two months in the present FIR. The Court also took note of the fact that the implication of the petitioner rested solely on the disclosure statement of the co-accused, which by itself is weak evidence unless corroborated.

In view of this, Justice Goel found that the petitioner was able to satisfy both conditions under Section 37. Importantly, the Court held that the second condition (not likely to commit an offence) can be further ensured by imposing strict supervisory conditions on the accused. To that effect, the Court ordered that the petitioner must submit an affidavit before the Special Judge, NDPS Court, on the first working day of each month declaring that he has not committed any offence after being released on bail. The Court held that such a requirement allows continued judicial oversight and provides a safeguard to the condition under Section 37. Additionally, the Court suggested that regular appearances before the jurisdictional magistrate or police station could also fulfill the legislative intent behind the “not likely to commit an offence” clause.

The Court also acknowledged that the principles enshrined in Section 21(4) of the Maharashtra Control of Organised Crime Act (MCOCA) are analogous to Section 37 of the NDPS Act, thereby allowing some cross-interpretation between these statutory frameworks. The key takeaway was that while the Court must remain cautious in granting bail in serious offences involving drugs, it must not become mechanical in its interpretation. A context-sensitive approach, that weighs both liberty and public interest, is required.

Finally, the Court concluded that the petitioner had satisfied the “twin conditions” under Section 37. It imposed certain conditions for release on bail and also allowed the State to seek recall of the bail order if any future offence is committed or if any incriminating material arises against the petitioner post bail.