Delhi HC grants NDPS bail: alleged 259 gm recovery just above 250 gm commercial quantity, 15 months in custody, no evidence yet recorded

Court: High Court of Delhi
Date of judgment: 7 October 2026
Case: BAIL APPLN./2008/2026
Parties: SUNNY Vs STATE OF NCT OF DELHI
Bench: HON'BLE MR. JUSTICE AMIT BANSAL
Outcome: Allowed

Summary

The Delhi High Court has granted regular bail to a man accused under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in a case where the alleged recovery of morphine was 259 grams against the commercial quantity of 250 grams. Justice Amit Bansal noted that the recovery was marginally above the commercial quantity, that the applicant had been in custody for one year and three months, that charges were framed but no evidence had been recorded, and that he had no other NDPS case. The Court held that a prima facie case for bail was made out on the grounds of absence of independent witnesses and prolonged delay in the trial.

The application was filed under Section 483 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in connection with FIR No. 172/2025 of Police Station Crime Branch (South-East). The applicant has been in custody since his arrest on 6 July 2025. The order's account of the prosecution case gives the date of apprehension as 6 July 2026, which does not fit this date or the one year and three months of custody it records.

According to the prosecution, the applicant was apprehended during regular patrolling and 259.3 grams of morphine was found in his possession. On his disclosure, 114 grams of morphine was allegedly recovered from one Lalit, who was also arrested. The samples sent to the forensic science laboratory were reported positive for morphine and several other substances. The status report states that the investigation is complete, the chargesheet is filed and charges have been framed.

The State opposed bail on the ground that a commercial quantity attracts Section 37, that the recovery from the co-accused was of an intermediate quantity so parity could not be claimed, and that the applicant had an earlier FIR of 2015. The applicant answered that the earlier FIR concerned a different offence and that he had been granted bail in it. The order records these contentions without ruling on parity or the earlier FIR separately.

The question before the court

Whether the rigours of Section 37 of the NDPS Act bar bail where the alleged recovery is only marginally above the commercial quantity
Whether prolonged custody with the trial yet to begin, and the absence of independent witnesses, justify bail

What each side argued

The applicant argued that he was falsely implicated and that no independent public witness joined the alleged search and seizure despite public persons being available, in breach of Section 50 of the NDPS Act.
He argued that the recovery was only marginally above the commercial quantity and relied on Taslima Alias Putti v. State NCT of Delhi and Wali MD @ Shamshad v. State (NCT of Delhi) & Anr., where bail was granted in similar circumstances.
He submitted that charges were framed but no witness had been examined, that there was a bleak likelihood of the trial being completed within a short period, and that co-accused Lalit was granted bail by the Sessions Court on 16 May 2026.
The State opposed bail, saying a commercial quantity of morphine was recovered so Section 37 of the NDPS Act applied, and that the applicant could not claim parity with the co-accused, from whom only an intermediate quantity was recovered.
The State also pointed to another case against the applicant, FIR No. 927/2015 of PS Jyoti Nagar. The applicant said it concerned an entirely different offence and that he was already on bail in it.

The court's decision

The Court referred to the Apex Court's orders in Badsha SK. v. The State of West Bengal and Man Mandal & Anr. v. The State of West Bengal, where accused persons in custody for about two years or more with trial not begun were released on bail. It also quoted Dheeraj Kumar Shukla v. State of U.P., where the Supreme Court said Section 37 may ordinarily be attracted for a commercial quantity, but that in the absence of criminal antecedents and with two and a half years in custody and the trial yet to commence, its conditions could be dispensed with at that stage.

From these decisions the Court drew that the stringent requirements of Section 37 of the NDPS Act do not preclude bail on the ground of undue delay in the trial. Prolonged incarceration affects the right to life and liberty under Article 21 of the Constitution, and conditional liberty must take precedence over the statutory restrictions in Section 37.

The Court recorded that the recovery from the applicant was admittedly 259 grams, marginally above the commercial quantity of 250 grams. In such circumstances, strict application of the rigours of the Act may not be justified and warranted a more careful consideration. The matter was at the stage of commencement of prosecution evidence, recording of evidence was yet to begin and would take considerable time. As per the nominal roll, the applicant had been in custody for one year and three months and his conduct in jail was satisfactory. He was admittedly not involved in any other NDPS case, so the possibility of his committing a similar offence on bail was remote.

The Court held that the applicant had made out a prima facie case for bail on the grounds of absence of independent witnesses and prolonged delay in the trial. The application was allowed and the applicant was directed to be released on bail on furnishing a personal bond of Rs.50,000 with one surety in the like amount to the satisfaction of the Trial Court.

The conditions are that the applicant will give his latest mobile number to the Investigating Officer and keep it working, give his permanent and residential address to the Investigating Officer within one week and report any change, appear before the Trial Court whenever the matter is listed, not leave the country without the Court's permission, not commit any offence, and not threaten or induce any witness or tamper with evidence. The application was disposed of accordingly.

Precedents referred to

Badsha SK. v. The State of West Bengal (SLP (Crl.) 9715/2023, order dated 13.09.2023)
Man Mandal & Anr. v. The State of West Bengal (SLP (Crl.) 8656/2023, order dated 14.09.2023)
Dheeraj Kumar Shukla v. State of U.P., 2023 SCC OnLine SC 918
Taslima Alias Putti v. State NCT of Delhi (Bail Appln. 3173 of 2025)
Wali MD @ Shamshad v. State (NCT of Delhi) & Anr. (Bail Appln. 3332/2025)

Provisions referred to

Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 8, 21, 37 and 50
Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 483 and 528
Constitution of India, Article 21

Read the full judgment (PDF) ↗

Official source: High Court of Delhi. The PDF above is a copy from an open dataset of the court's public records.

This summary is prepared for general assistance only. It may contain errors and is not legal advice — rely on the full judgment.

Criminal Ndps Bail Commercial Quantity

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