The Allahabad High Court has reaffirmed that possession of narcotics below the commercial quantity, coupled with no prior criminal record and the grant of bail to co-accused, constitutes a compelling ground for bail under the Narcotic Drugs and Psychotropic Substances Act, even when Section 37 imposes stringent conditions. The order underscores that procedural fairness and proportionality must guide bail decisions in drug cases, not automatic denial based on statutory presumption.
Background & Facts
The Dispute
The applicant, Iftikhar Ali, was arrested and charged in connection with Case Crime No. 43 of 2026, registered at Police Station Kotwali, District Rampur, under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The case arose from the recovery of 187 grams of smack (heroin) from his exclusive possession. The applicant has been in judicial custody since 09.04.2026 and faces trial before a Special Court under the NDPS Act.
Key Facts
- The quantity of smack recovered - 187 grams - is below the commercial quantity threshold prescribed under the NDPS Act
- The applicant has no prior criminal record
- Two co-accused, Sher Afgan and Imran Khan, were granted bail by the same High Court on 12.05.2026 and 11.05.2026 respectively
- The applicant has been in custody for over 35 days as of the date of hearing
- No evidence suggests involvement in trafficking, manufacturing, or distribution
- The applicant has undertaken to comply with all bail conditions
Procedural History
- 09.04.2026: Arrest of applicant following recovery of 187g of smack
- 10.04.2026: First Information Report (FIR No. 43/2026) registered at PS Kotwali, Rampur
- 11.05.2026: Co-accused Imran Khan granted bail by this Court in Criminal Misc. Bail Application No. 15916 of 2026
- 12.05.2026: Co-accused Sher Afgan granted bail by this Court in Criminal Misc. Bail Application No. 16007 of 2026
- 14.05.2026: Present bail application filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023
- 14.05.2026: Hearing conducted before Hon’ble Justice Jitendra Kumar Sinha
The Parties' Positions
For the Applicant
The applicant’s counsel contended that:
- The quantity of narcotics recovered is below the commercial threshold, reducing the gravity of the offence
- The applicant has no criminal antecedents
- Co-accused have already been granted bail, making denial to the applicant arbitrary and violative of Article 14
- The applicant is not a flight risk and has offered to comply with strict bail conditions
- Pendency of trial is likely to be prolonged due to heavy caseload, warranting release on bail
For the Respondent
The Additional Government Advocate opposed bail on the grounds that:
- Section 37 of the NDPS Act mandates stringent conditions for bail in offences punishable with imprisonment of 10 years or more
- The nature of the offence involves narcotics, which demands strict enforcement
- No submission was made that the applicant met the twin conditions under Section 37
Relief Sought
The applicant sought release on bail with personal bond and sureties, subject to conditions ensuring non-interference with investigation and trial.
The Legal Issue
Whether the High Court can grant bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, to an accused charged under Sections 8 and 21 of the NDPS Act, where the quantity of narcotic is below commercial threshold, co-accused have been released, and the applicant has no criminal history, despite the stringent conditions of Section 37 of the NDPS Act.
Arguments Presented
For the Appellant/Petitioner
The applicant’s counsel relied on Nadeem Ahmad v. State of West Bengal (2025) INSC 993 and Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 to argue that Section 37 of the NDPS Act does not operate as an absolute bar to bail. The Court must consider the nature of the offence, the quantity involved, the accused’s background, and the conduct of co-accused. The applicant’s possession of 187g of smack, below commercial quantity, indicates personal use or minor trafficking, not organized crime. Denial of bail while co-accused are released violates the principle of parity under Article 14. The applicant’s clean record and willingness to comply with conditions further support bail.
For the Respondent/State
The Additional Government Advocate contended that Section 37 of the NDPS Act imposes a mandatory twin condition: (i) reasonable grounds to believe the accused is not guilty, and (ii) that he is not likely to commit any offence while on bail. These conditions, the State argued, were not satisfied. The gravity of NDPS offences, even below commercial quantity, warrants strict adherence to statutory safeguards. The Court should not dilute legislative intent by granting bail on parity with co-accused.
The Court's Analysis
The Court examined the statutory framework under Section 37 of the NDPS Act and the jurisprudence developed by the Supreme Court. It noted that while Section 37 imposes stringent conditions, it does not preclude bail altogether. The Court emphasized that the twin conditions under Section 37 are not mechanical but must be assessed contextually.
"The fact that the quantity of narcotic is below the commercial threshold, the accused has no criminal antecedents, and co-accused have been granted bail, are relevant factors which cannot be ignored in the exercise of judicial discretion under Section 483 of B.N.S.S."
The Court distinguished Shiv Shanker Kesari, which upheld the rigour of Section 37, by noting that the present case involved a significantly lower quantity and no evidence of organized trafficking. The Court also relied on Nadeem Ahmad, which held that the nature of the offence, including quantity, must inform the bail decision. The Court observed that parity between co-accused is a relevant consideration under Article 14, especially where the factual matrix is substantially similar.
The Court further noted that the applicant’s custody period of over five weeks, coupled with the likely prolonged trial, weighs in favor of release. The applicant’s undertaking to comply with strict conditions - including non-interference with witnesses, attendance at all hearings, and no adjournment requests - mitigates any risk of abuse of liberty.
The Verdict
The applicant succeeded. The Court allowed the bail application and directed the release of Iftikhar Ali on a personal bond of Rs. 50,000 with two sureties each in the like amount. The applicant must comply with five conditions: (i) no intimidation of witnesses or tampering with evidence; (ii) no pressure on prosecution witnesses; (iii) personal appearance at key trial stages; (iv) no request for adjournments when witnesses are present; and (v) presence before the trial court on all dates, personally or through counsel. Breach of any condition shall result in cancellation of bail. The Court clarified that this order does not prejudge the merits of the case.
What This Means For Similar Cases
Parity Among Co-Accused Is a Valid Ground for Bail
- Practitioners may now invoke parity in bail decisions where co-accused in the same case have been released, especially when factual circumstances are materially similar
- Denial of bail to one accused while granting it to others with identical or lesser involvement may attract Article 14 challenges
- Courts must justify differential treatment with concrete, case-specific reasoning
Quantity Below Commercial Threshold Lowers the Bail Threshold
- Possession of narcotics below commercial quantity, even under Sections 8 and 21, is now a decisive mitigating factor
- Courts are expected to distinguish between personal use, petty trafficking, and organized syndicates when applying Section 37
- The burden shifts to the prosecution to demonstrate why bail should be denied despite low quantity and clean record
Strict Bail Conditions Are Acceptable Substitutes for Detention
- Courts may impose detailed, enforceable conditions to ensure trial integrity without resorting to pre-trial detention
- Conditions such as no adjournment requests and mandatory personal attendance are now recognized as effective safeguards
- Lawyers should draft comprehensive undertakings to satisfy judicial concerns without opposing bail outright
