The Rajasthan High Court has clarified that the mandatory restriction under Section 37 of the NDPS Act does not apply when the recovered contraband, after excluding packaging, falls below the statutory commercial quantity threshold. This ruling reinforces the principle that bail eligibility in drug cases hinges on precise forensic quantification, not initial allegations.
Background & Facts
The Dispute
The petitioners, Faizan Khan and Mohsin Khan @ Pintu, were arrested in connection with F.I.R. No. 466/2024 registered at Police Station Ambamata, District Udaipur, for alleged offences under Sections 8 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The initial allegation was that 52 grams of MDMA (ecstasy) were recovered from the co-accused, Farhan Akhtar @ Chikna. Both petitioners have been in custody since 08.01.2025 and 21.11.2024 respectively.
Key Facts
- The contraband was seized on 07.01.2025 during a raid
- The initial seizure report stated 52 grams of MDMA
- The Forensic Science Laboratory (FSL) report, dated prior to 15.07.2026, reclassified the substance as Mephedrone (MD)
- The statutory commercial quantity for Mephedrone under the NDPS Act is 50 grams
- The petitioners’ counsel contended that the weight of the polythene packaging was included in the 52-gram measurement
- Excluding the packaging, the net weight of Mephedrone was argued to be below 50 grams
- The co-accused, Farhan Akhtar @ Chikna, was granted bail by a coordinate bench of this Court on 16.06.2026 in S.B. Criminal Miscellaneous Bail Application No. 12096/2025
Procedural History
- 07.01.2025: Arrest of petitioners and co-accused following recovery at Ambamata
- 16.10.2025: Bail application of Faizan Khan rejected by Special Judge, NDPS Cases, Udaipur
- 16.02.2026: Bail application of Mohsin Khan @ Pintu rejected by the same court
- 21.02.2026: Rejection of Faizan Khan’s review application
- 16.06.2026: Co-accused Farhan Akhtar @ Chikna granted bail by coordinate bench
- 15.07.2026: Present bail applications filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)
The Parties' Positions
Relief Sought
The petitioners sought release on bail, arguing that: (1) the recovered substance was not MDMA but Mephedrone, (2) the net weight was below the commercial quantity after excluding packaging, (3) the co-accused had already been released, and (4) the trial would take considerable time.
The Legal Issue
The central question was whether the embargo under Section 37 of the NDPS Act, 1985, which bars bail in cases involving commercial quantities, applies when forensic analysis shows the recovered substance is not the alleged drug and its net weight falls below the statutory threshold after excluding packaging.
Arguments Presented
For the Appellant/Petitioner
Counsel argued that the FSL report conclusively established the substance as Mephedrone, for which the commercial quantity is 50 grams. They contended that the 52-gram figure included the weight of the polythene packaging, and upon deduction, the actual contraband weight was below 50 grams. They relied on the coordinate bench’s bail order dated 16.06.2026 in favor of the co-accused, Farhan Akhtar @ Chikna, to demonstrate inconsistency in bail treatment. They further raised arguable points regarding the integrity of the seized sample and the absence of chain of custody documentation.
For the Respondent/State
The Public Prosecutor did not dispute the FSL findings or the co-accused’s bail. However, he opposed bail on the grounds that the petitioners were directly implicated in the offence and that the nature of the crime warranted continued custody. He offered no rebuttal to the weight calculation argument or the procedural irregularities raised.
The Court's Analysis
The Court examined the statutory framework under Section 37 of the NDPS Act, which mandates stringent conditions for bail in cases involving commercial quantities. The Court noted that the threshold for commercial quantity is not merely a procedural formality but a substantive legal benchmark that determines the applicability of bail restrictions.
"The recovered contraband has been found to be Mephedrone (MD) and not MDMA, and the threshold limit of the commercial quantity of the same is 50 grams."
The Court held that if the net weight of the contraband, after excluding non-drug material such as packaging, is below the statutory limit, the offence does not attract the mandatory denial of bail under Section 37. The Court emphasized that the prosecution’s initial allegation cannot override the final forensic determination.
The Court further observed that the co-accused had already been granted bail on identical facts, and denying bail to the petitioners without a rational distinction would violate the principle of equal treatment under law. The Court also noted the prolonged period of incarceration - over 18 months for one petitioner - and the likelihood of a protracted trial.
The Court concluded that the petitioners had raised arguable points regarding the weight, classification, and chain of custody, and that the conditions for invoking Section 37 were not satisfied. Therefore, the embargo did not apply.
The Verdict
The bail applications were allowed. Faizan Khan and Mohsin Khan @ Pintu shall be released on bail, provided each furnishes a personal bond of Rs. 50,000 and two sureties of Rs. 25,000 each, to the satisfaction of the Trial Court. They must appear before the court on all hearing dates until trial completion. The Court clarified that its observations are strictly for bail purposes and shall not prejudice the trial.
What This Means For Similar Cases
Contraband Weight Must Be Net of Packaging
- Practitioners must insist on FSL reports that specify net weight of contraband, excluding packaging material
- Any prosecution relying on gross weight including packaging is vulnerable to challenge under Section 37
- Defence counsel should request detailed FSL breakdowns in all NDPS cases involving borderline quantities
Co-Accused Bail Creates Presumption of Equal Treatment
- When a co-accused is granted bail on identical factual grounds, denial of bail to another accused requires a compelling, documented distinction
- Courts will view disparate bail treatment as arbitrary unless justified by individualized risk or evidence
- This principle reinforces equality before law under Article 14 in bail jurisprudence
Section 37 Embargo Is Not Automatic
- The mandatory denial of bail under Section 37 applies only if the contraband meets or exceeds the commercial quantity as per final forensic report
- Initial police estimates or allegations are irrelevant if superseded by scientific analysis
- Courts must conduct a quantitative, not qualitative, assessment before invoking Section 37
