Bail in NDPS Act

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is one of the strictest criminal laws in India. Getting bail in NDPS cases is far more difficult than in ordinary criminal matters because the Act aims to curb drug abuse, trafficking, and illegal possession.

In this article, we break down the legal principles, bail conditions, court approach, case laws, and practical strategies used in NDPS bail matters.

1. Why Bail in NDPS is Difficult?

The NDPS Act reverses the normal presumption of innocence.
Once the police claim recovery of commercial quantity, the burden shifts on the accused to prove innocence at the bail stage.

Two reasons make NDPS bail complex:

1. Section 37 NDPS prohibits bail in certain cases.

2. Courts treat drug-related offences as a threat to society.

Thus, NDPS bail is not similar to bail under CrPC.

2. Types of NDPS Offences and Their Impact on Bail

The nature of recovery directly affects bail possibilities.

When Section 37 applies, the accused must satisfy the twin-conditions.

Small Quantity, Intermediate Quantity & Commercial Quantity in NDPS – Detailed Explanation

The NDPS Act classifies offences based on the quantity of the drug involved. This classification directly affects punishment, bail eligibility, and court approach. Understanding these categories is crucial because the entire bail strategy in NDPS cases depends on whether the recovery is small, intermediate, or commercial.

1. Small Quantity Under NDPS Act

Small quantity is the minimum amount of a drug specified under government notification. Every narcotic drug or psychotropic substance has a defined “small quantity” limit—for example:

• Heroin: 5 grams

• Ganja: 1000 grams (1 kg)

• Cocaine: 2 grams

• MDMA/ Ecstasy: 0.5 grams

Punishment for Small Quantity (Section 27 & 21(a))

• Maximum 1 year imprisonment, OR

• Fine, OR

• Both

The law recognizes that small quantity cases often involve addicts, not traffickers. So punishment and bail rules are lenient.

Bail Position for Small Quantity

• Section 37 NDPS does NOT apply.

• Bail is treated like a normal CrPC bail.

• Courts usually grant bail unless:
  ✓ Accused has past drug offences
  ✓ There is violence or other offences linked with the case
  ✓ The investigation indicates a trafficking network

Typical Grounds for Bail in Small Quantity Cases

• Personal consumption

• First-time offender

• No criminal history

• Minor recovery

• No independent evidence of sale/trafficking

Small quantity cases rarely require High Court intervention because Sessions Courts generally grant bail quickly.

2. Intermediate Quantity Under NDPS Act

Intermediate quantity refers to any amount between small quantity and commercial quantity.

For example, for heroin (small: 5g, commercial: 250g):

• Any recovery between 5g and 250g is intermediate.

Punishment (Section 21(b))

• Up to 10 years imprisonment

• Fine up to ₹1 lakh

Punishment is higher than small quantity but not as strict as commercial quantity.

Bail Position for Intermediate Quantity

• Section 37 does NOT apply, meaning the strict “twin-conditions” are not required.

• Court only checks:
  ✓ Nature of allegations
  ✓ Role of accused
  ✓ Possibility of tampering with evidence
  ✓ Criminal antecedents
  ✓ Compliance of NDPS procedures

Intermediate quantity cases fall in a grey zone—not too small, not too large—so bail depends heavily on specific facts.

When Courts Grant Bail in Intermediate Quantity

• Recovery doubtful or planted

• Non-compliance of Sections 42, 50, 57

• No conscious possession

• FSL report not submitted

• Accused connected only through call records or disclosure statement

• Long custody (6–12 months or more)

When Courts Refuse Bail

• Direct recovery from accused

• Evidence of trafficking network

• Accused absconded earlier

• Repeated offences

Intermediate quantity bail requires solid legal argument and attention to procedural defects.

3. Commercial Quantity Under NDPS Act

Commercial quantity represents large-scale drug trafficking, and the limits are strictly defined. Examples:

• Heroin: 250 grams or more

• Ganja: 20 kg or more

• Cocaine: 100 grams or more

• MDMA: 50 grams or more

Punishment (Section 21(c))

• Minimum 10 years imprisonment

• Maximum 20 years

• Fine of ₹1–2 lakhs or more

Because the punishment is extremely severe, the NDPS Act introduces the toughest bail restrictions for commercial quantity cases.

Bail Position for Commercial Quantity — Section 37 Applies

This is the most important bail rule:
Bail cannot be granted unless BOTH conditions are met:

1. Court must be satisfied accused is not guilty.

2. Accused is not likely to commit an offence on bail.

Additionally:

• Public Prosecutor must be heard.

• Court must record “reasonable grounds” in the bail order.

This makes commercial quantity bail rare but not impossible.

How Courts Analyse Commercial Quantity Bail

Courts carefully examine:

(a) Procedural Violations

• No written information under Section 42

• Illegal search or seizure

• Section 50 notice incorrect

• Samples not properly drawn or sealed

• No independent witnesses

• Same officer conducting seizure & investigation (Mohan Lal case)

(b) Weak Evidence of Conscious Possession

If drugs are found in:

• Common areas

• Shared vehicles

• Shared rooms

• Fields or open spaces
  bail becomes stronger.

(c) Length of Custody & Delay in Trial

Supreme Court has granted bail where the accused spent 3+ years in jail and trial was slow (Rabi Prakash v. State of Odisha).

(d) Medical Grounds

Serious health issues can justify bail even in Section 37 cases.

Comparison Table: Small vs Intermediate vs Commercial Quantity

Factor	Small	Intermediate	Commercial
Section 37 Applies?	No	No	Yes
Bail Difficulty	Easy	Moderate	Very Difficult
Punishment	Up to 1 year	Up to 10 years	10–20 years
Court Approach	Liberal	Balanced	Very Strict
Common Defence	Personal use	Procedural lapses	Non-compliance & long custody
Trial Duration Impact	Moderate	High	Very High (favors bail if delayed)

Final Understanding

• Small quantity cases are treated leniently; bail is usually granted.

• Intermediate quantity cases depend on facts; good defence can secure bail.

• Commercial quantity cases face strict barriers under Section 37, but bail is still possible if investigation is faulty, evidence is weak, or custody is prolonged.

3. Section 37 NDPS Act – The Biggest Barrier to Bail

Section 37 states that bail cannot be granted unless:

1. Public Prosecutor is heard, and

2. Court is satisfied that:

   • the accused is not guilty of the offence, and

   • is not likely to commit an offence while on bail.

These two conditions make NDPS bail very restrictive. Courts must record positive satisfaction before granting bail.

4. Important Grounds Used by Defence for Bail

Even in Section 37 cases, bail is possible if the defence highlights legal or procedural lapses.

(a) False Implication

Many NDPS cases involve planted recoveries or local enmity. Courts consider this argument especially if:

• There are no independent witnesses

• Recovery memos appear doubtful

• Accused has no past criminal record

(b) Non-Compliance of Sections 42, 43, 50 and 57

Procedural safeguards are mandatory under NDPS. Common lapses include:

• No written information to senior officer (Section 42)

• Illegal search or violation of Section 50 (personal search rights)

• Improper sampling

• No immediate reporting to superior officer

Courts have repeatedly held that procedural lapses can vitiate prosecution.

(c) Delay in FSL Report

Without a chemical examination report, the prosecution cannot prove the substance is a narcotic drug.

(d) Prolonged Custody

If the accused has been in jail for a long time and trial is not progressing, bail can be granted on constitutional grounds (Article 21).

(e) No Recovery from the Accused

When the accused is arrested only on disclosure statements or call records, courts are more liberal.

5. Key Judgments on Bail in NDPS Act

1. Union of India v. Shiv Shanker Kesari (2007)

The Supreme Court held that courts must record “reasonable grounds” to believe that the accused is not guilty before granting Section 37 bail. This is a mandatory requirement.

2. Tofan Singh v. State of Tamil Nadu (2020 – 2021)

Held that confessions given to NDPS officers are not admissible as evidence.
This judgment greatly helps accused persons during bail.

3. Mohan Lal v. State of Punjab (2018)

Recovery officer and investigating officer cannot be the same person.
Violation makes prosecution doubtful — helpful for bail.

4. State of Punjab v. Baldev Singh (1999)

Upheld strict compliance of Section 50 during personal search.

5. Rabi Prakash v. State of Odisha (2023)

SC granted bail because the accused was in custody for more than 3 years; trial delay violates Article 21.

6. Court Approach in NDPS Bail Applications

• For Small Quantity Cases

Bail is usually granted, unless there are special circumstances.

• For Intermediate Quantity Cases

Court examines individual facts—role of accused, recovery, procedural lapses.

• For Commercial Quantity Cases

Bail is rare but possible. Defence must show:

• Strong doubt in recovery

• Violation of mandatory procedures

• No conscious possession

• Long custody

• Weak evidence

• No past criminal record

7. Bail Procedure in NDPS Cases

1. File bail under Section 439 CrPC before Sessions Court/Special NDPS Court.

2. If rejected, approach High Court.

3. For long custody or exceptional grounds, High Court may grant bail even in commercial quantity cases.

4. Supreme Court can be approached under Article 136 for special leave.

8. Special Situations When Bail Is More Likely

(a) Juveniles

Juveniles are entitled to bail as a rule unless exceptions apply.

(b) Women

Courts show leniency if the woman played a minor role or recovery is small.

(c) Sick or Elderly Accused

On humanitarian grounds, courts may relax Section 37.

(d) Accused Not in Conscious Possession

If drugs were found in a car/house not owned or controlled by the accused, defence has a strong ground.

9. Practical Tips for Strong NDPS Bail

A senior advocate typically focuses on:

✓ Highlighting contradictions in seizure memo
✓ Bringing technical lapses in investigation
✓ Challenging conscious possession
✓ Obtaining CCTV footage or call logs
✓ Stressing violation of procedural safeguards
✓ Showing trial delay
✓ Demonstrating good antecedents of accused

This practical argument style has succeeded in several courts.

10. Conclusion

Bail in NDPS cases is tough, but not impossible. Proper legal strategy, strong documentation, and experienced courtroom advocacy by ndps advocate often make a decisive difference.

The NDPS Act is strict, but courts balance enforcement with constitutional rights and fairness.
A well-prepared bail application focusing on procedural lapses, weak evidence, long custody, and non-compliance with the Act can successfully secure bail even in commercial quantity cases.