Facts
The respondent, a Nigerian national, was arrested on 16 March 2023 after recovery of 4,935 grams of heroin. He was prosecuted under Ss.8(c), 21(c), 23(c), 27A, 28 and 29 NDPS Act. The Special Judge rejected bail, but the Bombay High Court subsequently granted bail, relying principally upon the absence of recovery from the respondent, Tofan Singh, and prolonged incarceration.
The Supreme Court found that the High Court had not demonstrated satisfaction of the twin requirements under S.37(1)(b)(ii) NDPS Act. After the Supreme Court directed steps for his arrest, the respondent became untraceable. Investigation also revealed that the surety furnished for him was fake/non-existent.
Issues
The principal questions considered were:
Whether the High Court correctly applied the twin conditions under S.37(1)(b)(ii) NDPS Act while granting bail.
Whether the respondent’s conduct warranted cancellation of bail.
What safeguards should govern grant of bail to foreign nationals in NDPS cases involving commercial quantity.
Whether the Supreme Court could exercise power under Art.142 Const. of India to address deficiencies in verification of sureties and prescribe uniform safeguards.
Court’s Reasoning
(a) Twin conditions under S.37 NDPS Act: The Court reiterated that both statutory conditions must be fulfilled: there must be “reasonable grounds for believing” that the accused is not guilty and that he is unlikely to commit any offence while on bail. The High Court’s order did not explain how the first condition was satisfied.
(b) Article 21 and S.37: In commercial-quantity NDPS cases, a broad assessment of the evidence is required without conducting a meticulous examination of the entire material. Article 21 considerations remain important but operate within the statutory rigours of S.37.
(c) Foreign nationals: The Court held that foreign nationals are protected by Art.21 Const. of India and that being a foreigner, by itself, does not disentitle an accused from bail. However, reasonable and proportionate special conditions may be imposed.
(d) Cancellation of bail: The respondent had allegedly committed the offence while already on bail in another NDPS case and thereafter became untraceable. His conduct, together with the failure to satisfy S.37, justified cancellation of bail.
(e) Surety verification and Art.142: The case demonstrated that existing mechanisms could be inadequate where a foreign accused furnishes a fake or non-existent surety. The Court therefore exercised Art.142 to prescribe safeguards concerning verification of sureties, passport and travel restrictions, and other conditions applicable to foreign nationals.
Held
The High Court’s grant of bail was found unsustainable. The Court cancelled the bail and issued directions under Art.142 concerning foreign nationals accused under the NDPS Act in cases involving commercial quantity, including safeguards for verification of sureties.
Conclusion
In NDPS cases involving commercial quantity, the twin conditions under S.37 must be independently satisfied.
Relevant Para
11.3.7 The conclusion that can be drawn from the above discussion is that when it comes to cases under this special law (NDPS Act 1985) and particularly involving commercial quantities, a general hesitation pervades. In complying with the twin conditions, a broad perusal of the evidence is called for, not one that dives into minutiae, or a detailed examination of all material. Article 21 considerations are deservedly at the centre, but they are not exercised independent of the statutory rigours.
Case Details
Citation: 2026 INSC 870
Decided on: 17 August 2026
Case Title: Union of India v. Chidiebere Kingsley Nawchara & Ors.
Court: Supreme Court of India
Bench: Sanjay Karol J.; Augustine George Masih J.