NDPS Bail in the Allahabad High Court: Quantity, Section 37 and Long Custody

Most cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) begin with an arrest and a recovery – ganja, charas, smack (heroin), poppy straw (doda) or tablets and syrups. The first question the family usually asks is whether bail is possible and how long it will take. The answer depends, more than anything else, on the quantity recovered. This article explains the route to the Allahabad High Court and the rules the Court applies.

Which court, and in what order

NDPS offences are tried by Special Courts constituted under Section 36 of the Act, presided over by a Sessions Judge or Additional Sessions Judge. A bail application is ordinarily made first to the Special Court. If it is rejected, a fresh application can be filed in the Allahabad High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which corresponds to Section 439 of the old Code. Section 36A(3) of the NDPS Act expressly preserves the High Court's power to grant bail in these cases.

The High Court application is not an appeal against the Special Court's order. The High Court looks at the case afresh, on the record placed before it, and the State is given notice and an opportunity to oppose.

Why the quantity decides almost everything

For each drug, the Central Government has notified a 'small quantity' and a 'commercial quantity'. Anything between the two is 'intermediate'. Some common examples from the notified table:

• Ganja: small quantity up to 1 kg; commercial quantity 20 kg or more

• Charas (hashish): small up to 100 grams; commercial 1 kg or more

• Heroin (smack): small up to 5 grams; commercial 250 grams or more

• Cocaine: small up to 2 grams; commercial 100 grams or more

• Poppy straw (doda): small up to 1 kg; commercial 50 kg or more

• Codeine: small up to 10 grams; commercial 1 kg or more

The punishment follows the same three bands. For small quantity, the maximum is rigorous imprisonment up to one year, or fine up to ₹10,000, or both (the limit was raised from six months by the 2014 amendment). For intermediate quantity, it is up to 10 years and fine up to ₹1 lakh. For commercial quantity, it is a minimum of 10 and a maximum of 20 years, with fine of ₹1 lakh to ₹2 lakh.

The weight that counts is the weight of the whole mixture seized, not only the pure drug content. A three-Judge Bench of the Supreme Court settled this in Hira Singh v. Union of India (2020) 20 SCC 272, holding that the neutral substance in a mixture is not to be excluded when deciding whether the quantity is small or commercial. In practice, therefore, the recovery memo and the weight recorded at the time of seizure matter greatly.

Small and intermediate quantity: ordinary bail principles

Where the recovered quantity is small or intermediate, Section 37 does not apply. Bail is decided on the ordinary principles: the nature of the accusation, the material collected, the period already spent in custody, the stage of the case, the likelihood of the accused appearing for trial, and any criminal history. Offences in these bands are still serious, but bail is not subject to the special statutory bar.

Commercial quantity: the Section 37 conditions

Section 37(1)(b) of the NDPS Act applies to offences involving commercial quantity (and to offences under Sections 19, 24 and 27A). A person accused of such an offence is not to be released on bail unless two conditions are met:

• the Public Prosecutor has been given an opportunity to oppose the application; and

• where the Public Prosecutor opposes it, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.

Section 37(2) makes these limitations an addition to the ordinary law of bail, not a replacement for it.

The Supreme Court has explained how strict the test is. In State of Kerala v. Rajesh (decided 24 January 2020), it held that the conditions are cumulative, and that 'reasonable grounds' means something more than prima facie grounds: there must be substantial, probable reasons, based on the facts of the case, for believing that the accused is not guilty. At the same time, in Union of India v. Rattan Mallik (2009) 2 SCC 624, it held that the court is not called upon to record a finding that the accused is not guilty, and that the evidence is not to be weighed meticulously at the bail stage. The satisfaction is for the limited purpose of bail.

What the High Court looks at in a commercial-quantity case

Because the Court must form a view on 'reasonable grounds', the details of the record carry great weight. Points that commonly arise include:

• whether the recovery was from the person of the accused, a bag, a vehicle or premises, and whether Section 50 of the Act applied and was complied with;

• how the samples were drawn and certified, including before a Magistrate under Section 52A;

• what the forensic (FSL) report says, and whether it matches the quantity and substance described in the recovery memo;

• whether the accused was found in conscious possession, or is implicated only by a co-accused's statement;

• the role attributed to each accused, for example the driver of a vehicle as against its owner or the person who loaded the goods; and

• criminal history, which bears directly on the second condition – whether the accused is likely to commit an offence while on bail.

The search and sampling requirements, and how a lapse affects trial and bail, are explained in a separate article on NDPS search and seizure. Whether a particular lapse is serious enough is often a matter for evidence at the trial, and the Court may decline to decide it finally at the bail stage.

Long custody and delay in the trial

Section 37 does not shut the door where the trial is unduly delayed. In Mohd. Muslim @ Hussain v. State (NCT of Delhi) (decided 28 March 2023), the Supreme Court granted bail to an undertrial who had spent about seven years in custody, holding that Section 37 does not prevent bail on the ground of undue delay, and that a literal reading of the conditions would make bail impossible. In Rabi Prakash v. State of Odisha (order dated 13 July 2023), where the accused had spent more than three and a half years in custody in a case involving 247 kg of ganja, the Court held that prolonged incarceration is against Article 21 and that conditional liberty must override the statutory embargo under Section 37.

These decisions do not lay down a fixed period after which bail must follow. The Court considers the period already spent, the number of witnesses examined and still to be examined, the reasons for the delay, and the conduct of the accused.

Default bail if the charge-sheet is late

Where the police do not file the charge-sheet within the time allowed, the accused can claim default bail as of right, provided he applies before the charge-sheet is filed. For offences involving commercial quantity (and offences under Sections 19, 24 and 27A), Section 36A(4) of the NDPS Act extends the ordinary period to 180 days. The Special Court may extend it up to one year, but only on a report of the Public Prosecutor showing the progress of the investigation and specific reasons for keeping the accused in custody beyond 180 days. For other NDPS offences, the ordinary periods under Section 187 of the BNSS apply.

Anticipatory bail

Anticipatory bail in NDPS cases in Uttar Pradesh is a separate question. The Lucknow Bench of the Allahabad High Court, in Sudhir @ Sudhir Kumar Chaurasia v. State of U.P. (2025:AHC-LKO:34988), held that an application under Section 482 of the BNSS is maintainable in an NDPS case, while the strictness of the Act is weighed when the application is decided. This is discussed in our article on anticipatory bail in Uttar Pradesh.

Documents that matter

For a High Court bail application in an NDPS case, it helps to have ready:

• the FIR and the recovery memo (fard baramadgi), with the recorded weight;

• the order of the Special Court rejecting bail;

• the forensic (FSL) report, if received, and the sampling papers;

• the charge-sheet, if filed, with the list of witnesses;

• a custody certificate showing the period spent in jail; and

• details of any other criminal cases, with their status.

Summary

In an NDPS case, bail turns first on quantity. For small and intermediate quantities, ordinary bail principles apply. For commercial quantity, Section 37 requires the court to find reasonable grounds for believing that the accused is not guilty and is not likely to offend while on bail – a strict test, but one applied on the record and without a final finding of guilt. Lapses in search, sampling or the forensic report can bear on that test. Long custody with a slow trial is a separate and recognised ground, and a late charge-sheet can give a right to default bail after 180 days in commercial-quantity cases. After rejection by the Special Court, the application lies to the Allahabad High Court under Section 483 of the BNSS. Each case depends on its own record, and no outcome can be assumed.