[S.37 NDPS Act] When Is Accused 'Not Likely To Commit Offence'? P&H High Court Explains Pre-Requisite For Granting Bail

The Punjab & Haryana High Court has explained the pre-requisite of granting bail under NDPS Act in case of commercial quantity wherein one of the conditions is that the accused is "not likely to commit any offence while on bail."

Section 37 states that bail should not be granted to an accused in case of commercial quantity unless the accused is able to satisfy twin conditions i.e. reasonable ground for believing that the accused is not guilty of such an offence and that the accused would not commit an offence or is not likely to commit an offence, if granted bail.

In the present case, the Court granted bail to a man accused under NDPS Act for commercial quantity and was in custody under other FIRs for almost 3 years. The Court imposed a condition to submit an affidavit before the concerned Special Judge, NDPS Court on the first working day of every month stating that he has not committed any offence after being enlarged on bail in the present FIR.

Justice Sumeet Goel said, "To ascertain the likelihood of an accused-applicant exhibiting a propensity for recidivism whilst enlarged on bail, the adjudicating Court may judiciously consider the antecedents of the accused-applicant. While such antecedents undeniably constitute a pertinent and germane factor in informing the Court's holistic determination, they are by no means to be regarded as exclusively determinative or conclusively dispositive of the ultimate finding."

The Court added that the additional pre-requisites for grant of bail as contained in Section 21(4) of MCOCA are in pari material with those contained in Section 37 of the NDPS Act.

It further suggested that another measure, by which such condition under Section 37 can be met, "is mandating the applicant-accused to regularly cause appearance, at stipulated time/interval, before the concerned Illaqa (jurisdictional) Magistrate/Trial Court or the concerned Police Station and submit an affidavit to the effect that he has not been involved in any other offence after being released on bail."

Still further, the requirement of the provision can be met with, in essence, if leave is reserved in favour of the State to seek for recall of the bail order upon their gathering information about such successful bail-applicant being involved in an offence, after his being released on bail, the judge opined.

The Court was hearing a regular bail in case registered under Section 21-C of the NDPS Act.

The FIR in question pertains to recovery of 255 grams of Heroin and Rs.4,70,000. stated to be drug money. The quantity of contraband was a commercial quantity. Hence, the rigor of Section 37 was applicable in the present case.

When Accused Is Likely To Commit Any Offence On Bail

The Court noted that the second proscriptive condition, "that the applicant is 'not likely to commit any offence whilst on bail," delineated in Section 37, for the grant of bail, mandates an affirmative.

It interpreted that the term 'likely' by its inherent semantic ambiguity, consistently eludes any singular, precise or universally applicable definition, thereby mandating its interpretation strictly in accordance with the specific statutory context in which it is deployed.

"In the particular context of Section 37 where the Court must be satisfied that the accused is 'not likely to commit an offence while on bail', this term demands a nuanced and careful interpretation. It is imperative that 'likely' be construed as denoting a 'reasonable probability' or a 'palpable probability', rather than a mere 'nascent possibility' or a 'speculative probability'," the Court added.

Justice Goel highlighted that the above distinction is crucial because assessing the 'likelihood of committing an offence' necessitates a predictive judgment concerning future conduct—an inherently complex and often indeterminate task upon which no conclusive adjudication can be made with absolute certainty.

The Court opined that, to ensure that the stringent conditions of Section 37 do not lead to an effective denial of bail, the term 'likely' must be interpreted as requiring a demonstrable & substantial probability of re-offending, rather than a remote or theoretical one.

The petitioner was arrested on 21.04.2025 in the present FIR and is in continuous custody since then. He was arraigned as an accused into the FIR in question on the basis of disclosure statement made by co-accused namely Sahil. The petitioner was admittedly in jail when the recovery from co-accused (Sahil) was made and no phone has been recovered from the petitioner.

The Court noted that there is no other material available against the petitioner, at this stage, in form of any recovery made from the petitioner himself or CDRs (Call Detail Records) between the petitioner and the co- accused or any bank transaction between them.

Considering that the petitioner is in custody in another FIR for around 2-3 years and in the present case for about last 02 months and 17 days, the Court imposed certain conditions and granted the relief.

Mr. Ruhani Chadha, Advocate for the petitioner.

Mr. Durgesh Garg, AAG Punjab.

 Title: Jaswinder Singh alias Kala v. State of Punjab

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