Special Courts and Bail Under Section 36A and 37 Of NDPS Act: (Sections 36A, 37)

This article is written by Atishay Jain, a former UPSC aspirant and a core member of the ApniLaw team. With a strong focus on criminal and regulatory law, the article offers clear insights into complex legislations like the Narcotic Drugs and Psychotropic Substances (NDPS) Act. For any personal queries or suggestions, feel free to reach out to us through our official channel.

What Is Section 36A Of NDPS Act?

Under section 36A Any offence under the NDPS Act punishable with more than three years in prison will be tried only by a Special Court. If multiple Special Courts exist in the area, the government will decide which one handles the case. If police forward a suspect to a Magistrate under Section 167 of the CrPC:

• A Judicial Magistrate can order custody for up to 15 days.
• An Executive Magistrate can order custody for up to 7 days.
• If the Magistrate finds detention unnecessary, they must forward the accused to the Special Court.
• Once the Special Court receives the accused, it can use the same powers under Section 167 CrPC to authorize detention.
• A Special Court can take direct cognizance of an offence based on:

• A police report, or
• A complaint by an authorized officer from the Central or State Government.
• No need for the case to be committed to the court.
• While trying NDPS offences, the Special Court can also try other related offences under CrPC.
• This section does not affect the High Court’s powers under Section 439 of the CrPC. The High Court can exercise those powers as if the term “Magistrate” includes “Special Court.”
• For offences under Sections 19, 24, 27A, or involving commercial quantity:
• The detention period is 180 days instead of 90.
• The court may extend it up to one year if the Public Prosecutor submits a report showing investigation progress. Also, valid reasons for continued detention.
• Offences punishable with up to three years can be tried summarily, despite CrPC provisions.

What Is Section 37 Of NDPS Act?

• Every offence under the NDPS Act is cognizable. Police can arrest without a warrant.
• Courts cannot grant bail for offences under Sections 19, 24, 27A, or involving commercial quantity unless:
• The Public Prosecutor has had a chance to oppose bail, and
• The court believes the accused is not guilty and won’t reoffend.
• These bail conditions add to those in the CrPC or any other existing law.

Case Laws on Sections 36A & 37 of the NDPS Act

1. Telangana High Court: Bail Denied in Alprazolam Case (May 2025)
   In Vasamsetti Naresh v. State, the Telangana High Court rejected the bail plea of a man convicted for manufacturing 132 kg of alprazolam, a quantity far exceeding the commercial limit under the NDPS Act. Justice K. Lakshman emphasized that, under Section 37, bail cannot be granted unless the court is satisfied that the accused is not guilty and unlikely to reoffend. The court noted that serving nearly two years of a ten-year sentence does not justify bail in such serious offences.
2. Delhi High Court: Bail Granted to Foreign National (May 2025)
   The Delhi High Court granted bail to a Kyrgyzstan woman arrested under Sections 20, 25, and 29 of the NDPS Act for alleged involvement in illegal handling of cannabis. Justice Shailender Kaur ruled that foreign nationality alone is not a valid reason to deny bail, especially since the woman’s passport was seized. The court noted that the quantity of charas recovered was “intermediate,” meaning the stringent bail provisions under Section 37 did not apply.

More Case Laws

1. Calcutta High Court: Default Bail Not Applicable Without Chemical Report (May 2025)
   In a significant ruling, the Calcutta High Court held that an accused under the NDPS Act is not entitled to default bail if a charge sheet is filed within the statutory time limit, even if it lacks the chemical analysis report. The court emphasized that a charge sheet is considered complete as long as sufficient evidence is presented for the court to take cognizance, and a supplementary charge sheet with the forensic report can be filed later.
2. Allahabad High Court: Harmonious Interpretation of Sections 36A(3) and 37 (June 2024)
   In Vimal Rajput v. State of U.P., the Allahabad High Court addressed the interplay between Sections 36A(3) and 37 of the NDPS Act. The court noted that while Section 37 imposes restrictions on granting bail, Section 36A(3) preserves the special powers of the High Courts under Section 439 of the CrPC. The court emphasized the need for a harmonious interpretation to ensure that Section 36A(3) is not rendered redundant, allowing High Courts to exercise discretion in appropriate cases.
   

Conclusion

Section 37 imposes stringent conditions for granting bail in offences. This is involving commercial quantities, requiring courts to be satisfied of the accused’s innocence. Also, low risk of reoffending. Moreover, Section 36A(3) safeguards the High Courts’ special powers under Section 439 of the CrPC. Thus, allowing them to grant bail in appropriate cases despite the restrictions in Section 37. Lastly, Filing a charge sheet within the statutory period. Even without a chemical analysis report, is considered sufficient to deny default bail under the NDPS Act.