Critical Analysis of Bail in NDPS matters

Introduction to the NDPS Act

Bail is much stringent in NDPS matters, strict actions are taken under the law in these matters to prevent drug trafficking in the country. The NDPS Act (Narcotic Drugs and Psychotropic Substances Act,) 1985 came into force on 14 November 1985.  Under the NDPS Act, it is illegal for a person to produce/manufacture/cultivate, possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance. The Act has been amended twice – in 1988 and 2001. The Act extends to the whole of India and it applies also to all Indian citizens outside India and to all persons on ships and aircraft registered in India.
Thus, this act is to consolidate and amend the law relating to narcotic drugs and psychotropic substances, to apply stringent provisions for the control and regulation of operations, and to implement the provisions of the International conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.

What is Bail

Section 436–450 governs the provisions relating to bail under the Criminal Procedure Code, 1973.

The word Bail is not defined in the code but however, Bail can be understood as a procedure by which a judge or magistrate sets free someone who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner’s later appearance in court for further proceedings.

When a person is arrested and booked by the police, they have the right to apply for bail through a bail application. The application is considered by the Magistrate in the bail hearing.

What does Section 37 of the NDPS Act reads:-

“Offences to be cognizable and non- bailable:-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974)

(a) Every offence punishable under this Act shall be cognizable.

(b) No person accused of an offence punishable for [offence under section 19 of section 24 or section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause(b) of sub-section(1) are in addition to the limitations under the Code of Criminal Procedure, 1973(2 of1974) or any other law for the time being in force, on granting of bail.”

Analysis of the NDPS Act:

  • Firstly, are Offences having penalty less than 3 years Bailable offences and there is no exception including NDPS Act.

Para II of Schedule I to Criminal Procedure Code deals with the offences under other laws. Item No.3 in the list (in Part II of the First Schedule) provides that if the offence concerned (under the other law) is punishable with imprisonment for less than three years, it is bailable and non-cognizable. Now the offence of possession of a small quantity of Ganja etc, under Section 21 of the NDPS Act, if proved, can lead to a sentence up to six months, and fine. By virtue of Section 37(1) of the NDPS Act, the offence has become cognizable; however, as per Item No.3 in the list (In Part II of the First Schedule) offence is clearly bailable.

  • Secondly, When the Possession of Consumption of contraband substances is below the limit prescribed under the NDPS act, the possessor is deemed to be a victim rather than accused. However, S.27 A makes it non bailable offence for the quantity above the specific limit and having the nexus with the drug man/ transporter/ suppliers.
  • Section 2 (xxiiia) defines “Small quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.
  • When the Officer in charge recovers some contraband (narcotics drugs) from the someone, the first step of the policy is to measure the contraband with the measurement instrument and take the sample from contraband and check type of contraband with the help of kit which they carry with them. When the quantity of the contraband falls under the definition of section 2(xxiiia) is called small quantity and in small quantity court grant the bail easily.
  • Division Bench of Delhi High Court has also held in Minnie Khadim Ali Kuhn vs. State Nct of Delhi (Supra) that where recovered contraband is small quantity offence is bailable.
  • The Rajasthan High Court in Husain vs. State of Rajasthan, S.B. Criminal Misc. Bail No.11268/2017 decided on 01.09.2017 held that anticipatory bail is not maintainable where recovered contraband is less than small quantity as the offence is a bailable offence.
  • In 2007, the Bombay HC, while hearing an appeal filed by a German national who was caught with ganja and charas in Pune, rejected the prosecution’s contention that all offences under the NDPS Act are non-bailable. Interpreting the wording of the anti-narcotics law, Justice JH Bhatia had remarked, “In the body of the Section, the legislature has only declared that all the offences under the Act shall be cognizable but the legislature has not declared that all the offences under the Act shall be non-bailable.” Further, Justice Bhatia held that only offences involving commercial quantities of drugs which are punishable with a jail term of a minimum of 10 years are non-bailable.
  • From the table below we can understand what is small and commercial quantity
Drugs Small quantity Commercial quantity
Codeine 10g 1kg
Opium 25g 2.5kg
Buprenorphine, semi-synthetic opioid 1g 20g
MDMA (ecstasy) 0.5g 10g
Methamphetamine 2g 50g
Fentanyl 0.005g 0.1g
Morphine, Heroin (smack/ brown sugar) 5g 250g
Diazepam, methaqualone 20g 500g
Ganja 1kg 20kg
Lysergic Acid Diethylamide (LSD) 0.002g 0.1g
Cannabis/ marijuana/charas/hashish 100g 1kg
Cocaine 2g 100g
Amphetamine 2g 50g
  • Thirdly, Can the Court rely completely on the sections invoked by the investigating officer in NDPS Bail matters

The apex court in the case of Union of India Vs. Rattan Mallik @ Habul observed “We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of `not guilty’. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.

The Supreme Court in the matter of Union of India through Ncb vs Md. Nawaz Khan on 22 September, 2: The bench of DY Chandrachud and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held that,

“… the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

In Prasanta Kumar Sarkar v. Ashis Chatterjee,  ( 2010) 14 SCC 496, it was observed

“9. … this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  • nature and gravity of the accusation;
  • severity of the punishment in the event of conviction;
  • danger of the accused absconding or fleeing, if released on bail;
  • character, behavior, means, position and standing of the accused;
  • likelihood of the offence being repeated;
  • reasonable apprehension of the witnesses being influenced; and

danger, of course, of justice being thwarted by grant of bail.”

  • Fourthly, Whether there is distinction of element of Criminality for the accused having different Socio- economic standing.

The Socio- economic conditions have a relative significance on crime. Even though economic phenomenon influences certain types of crimes but criminality as a whole cannot be attributed only to a single cause. In the case of Bonger’s theory it fails to elucidate why people with sufficient means like business tycoons, high-ranking officers, ministers and entrepreneurs commit crimes. We can see corruption in India right from the grass root level to the upper ranks, and it can only be attributed to greed and temptation of man. It is true that necessity motivates a person to commit crimes but the current influx of modernization and excessive materialism has changed the way we look at crimes. There is an all-time rise of socio-economic crimes like hoarding, black-marketing, adulteration, tax evasion as well as white collar crimes.

In the case of Shreeangyee v. State of Madras, the accused was a mother of five children who had been deserted by her husband. Due to her financial condition and inadequate earnings, she was unable to support her kids. When she lost all lawful means of earning money, she drowned all five of her children and jumped into the well. Her children died but she was somehow rescued and convicted under section 302 of the IPC for killing her children. In this case, the court held poverty not to be a defence for the murder of innocent children.

In another case, Abdul Karim Telgi in 2002, was charged for counterfeiting stamp paper in India. He appointed 350 fake agents to sell stamp papers to banks, insurance companies, and stock brokerage firms. The scam spread across 12 States and the amount involved was pegged at Rs 200 billion.

The investigation revealed that Telgi enjoyed support from various government departments that were involved in the production and sale of highsecurity stamps. In January 2006, Telgi and several associates were sentenced to 30 years rigorous imprisonment.

  • Fifthly, Is the principle of equality of law and equal protection of law is becoming bias against the influential, rich and renowned personality?

In the case of Aryan khan we can see that the matter of his bail was listed before the Hon’ble Bombay High Court within days but in the same case when a person is accused who belongs from a marginalized section of the society, their bail matter are always delayed in listing, one of the major reason of this is inadequate access to legal counsel.

In a recent seminar, Justice Madan Lokur said, It is good that Aryan Khan got Bail, but what about the other 2 Lakh Bail Applications Pending?  Asked Justice Madan Lokur. He was speaking on “Encounter killings in India’ at the release of ‘Extinguishing Law in life” Police killings and cover up in the state of UP (a report by Youth for Human Rights Documentation, Citizens against Hate and People’s Watch).

Former Supreme Court judge, Justice Deepak Gupta in his farewell speech said, the system usually went into a tizzy if a rich person was put behind bars. Applications for his bail and expediting his trial were filed repeatedly in the superior courts. His case was heard at the cost of delaying the case of the poor litigant. The poor too had a right to life and dignity. The judiciary needed to hear and help them.

We have seen many times, in recent that a matter gets listed in the Supreme Court or High Court within a day or two, when an eminent person is involved but whereas there are lakhs of under trail prisoners who simply are waiting when there matter will get getting listed.

The worst sufferers, as always, are the marginalized communities — Dalits, religious minorities and adivasis. Their plight is often compounded by inadequate access to legal counsel.


The NDPS act is a stringent law in terms of bail of an accused under trail, the act is meant to control and prevent drug trafficking in the country, although we see from the various judgments of the apex court and High Courts that bail under the NDPS act is not a matter of right but when the quantity of the contraband substances is of small below the prescribed limit, then bail can be given to the accused. When the quantity is small and when the person accused is especially of young age, the person needs to be given proper medical treatment rather than jail which might have an adverse affect on their mental health so they may lead a normal life in future. The person accused under the NDPS act needs to have proper adequate means of access to justice and when the person accused is especially from a poorer section of society we need to look that they have an adequate access to legal counsel to represent their case.

In recent we have seen when a celebrity or an influential person is booked under the NDPS act, there is sometimes media hype in such matters, unnecessary media hype may lead to leak of confidential information, which may affect the proper functioning of the judicial system, so the media should be much cautious to see that any evidence is not hampered in the process of justice but however the order/judgments that are passed by the Court, that are available to the public at large and the media can inform and educate the people at large about the orders/judgment passed by the Court.

Author: Adv. Bhargav Choudhury, Associate, TruLex