Strict Application Of Rigours Of Section 37 NDPS Act Unjustified For Recovery Slightly Above Commercial Quantity: Delhi High Court

The Delhi High Court observed that strict application of the rigours under Section 37 of the NDPS Act may not be justified in cases involving borderline commercial quantities.

The Court granted regular bail to an accused who was arrested after 259.3 grams of morphine—a quantity marginally exceeding the 250-gram commercial threshold—was recovered from his possession.

It highlighted that prolonged incarceration and the completion of investigation warrant the protection of the applicant’s fundamental right to liberty under Article 21 of the Constitution over statutory bail restrictions.

The Bench of Justice Amit Bansal held, "Admittedly, the recovery made from the applicant was 259 gms, which is marginally above the commercial quantity, prescribed under the NDPS Act of 250 gms. In such circumstances, the strict application of the rigours of the NDPS Act may not be justified and warrants a more nuanced consideration."

Advocate Shan Ul Islam appeared for the Applicant/Accused, while APP Mukesh Kumar appeared for the State

Brief Facts

An application was filed under Section 483 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) seeking regular bail in connection with an FIR registered under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’). The Accused/Applicant was in custody since July 6, 2025. 

It was the case of the prosecution that the Accused was apprehended during the course of regular patrolling, and 259.3 grams of morphine was found in his possession and seized, and the applicant was arrested.

Contentions of the Parties

It was submitted by the Accused/Applicant that he was falsely implicated in the case. He submitted that the prosecution failed to comply with the mandatory conditions under Section 50 of the NDPS Act, inasmuch as no independent public witness joined at the time of the alleged search and seizure despite the availability of public persons at the spot.

The State opposed the bail application and submitted that the commercial quantity of Morphine was recovered from the applicant; therefore, the rigours of Section 37 of the NDPS Act would come into play.

Observations of the Court

The Court observed that the Supreme Court, in a plethora of judgments, has held that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial. 

"Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act", the Court observed.

It was noted that the investigation was complete, the chargesheet was filed, and the matter was at the stage of commencement of prosecution evidence. 

Accordingly, the Court allowed the application and granted bail to the Applicant/Accused.

Cause Title: Sunny v. State of NCT Of Delhi [Bail Appl. 2008/2026 & CRL.M.A. 16576/2026]

Appearances:

Applicant/Accused: Advocates Shan Ul Islam, S. Islam and Dinesh Chandar

Respondent: APP Mukesh Kumar 

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