Bail in NDPS Commercial Quantity Cases Cannot Be Granted Without Satisfying Twin Conditions of Section 37: Delhi High Court Cancels Bail Orders Terming Them ‘Perversely Illegal’

“Trial Court Did Not Even Whisper Section 37 NDPS Act While Granting Bail Despite Commercial Quantity Recovery” – In a sharply worded judgment Delhi High Court (Justice Ravinder Dudeja) cancelled the bail granted to three co-accused in a narcotics case involving 472.55 grams of heroin, holding that the trial court had “completely disregarded the statutory mandate of Section 37 of the NDPS Act”, rendering the orders “perverse and unsustainable in law.”

The judgment came in three connected petitions filed by the State (petitioner) under Sections 439(2) and 482 CrPC, challenging the bail orders granted to Seema, Shilpa, and Akash by the Vacation Judges of Shahdara District, Karkardooma Courts in June and July 2024. The case pertains to FIR No. 407/2024 registered under Sections 21 and 29 of the NDPS Act at PS Nand Nagri, following a raid that yielded a commercial quantity of heroin from the residence of the accused.

“Entire Recovery Forms A Single Chain – Section 29 Invoked Validly”

Justice Dudeja strongly upheld the prosecution’s claim that the seizure of heroin from the three accused was not fragmented but part of “a single, continuous and inseparable transaction”. The court emphasized:

“The prosecution’s narrative presents a sequence of events showing that, acting on secret information, the raiding team first intercepted co-accused Akash…based on the disclosure made by Akash, the same raiding team then detained co-accused Seema and Shilpa from the same premises…All the recoveries were made in a single operation by the same raiding party, indicating a connected sequence of events and common intent.”

The Court held that Section 29 of the NDPS Act (pertaining to conspiracy and abetment) was rightly invoked, and reliance on the decision in Awadhesh Yadav v. State, 2023:DHC:8529 was justified. Accordingly, the total quantity of 472.55 grams had to be treated as a clubbed commercial quantity, not three separate intermediate quantities.

“Omission to Apply Section 37 is Not a Mere Irregularity – It’s a Fatal Legal Flaw”

The crux of the High Court’s reasoning lies in its unambiguous assertion that bail under NDPS involving commercial quantity cannot be granted without fulfilling the stringent twin conditions under Section 37(1)(b).

“Once Section 37 NDPS Act comes into play, the legal position is well settled that the Court cannot enlarge an accused on bail unless it records its satisfaction regarding the twin conditions — that the accused is not prima facie guilty and is not likely to reoffend.”

Justice Dudeja noted that the trial court failed to even mention Section 37, and its orders proceeded as though the case concerned intermediate quantity. This, the Court said, was “not a mere irregularity” but a fundamental legal defect rendering the orders illegal and liable to be set aside.

“History of Prior NDPS Cases Ignored – Anticipated Risk of Reoffending Was Never Assessed”

The judgment also heavily faulted the trial court for its non-consideration of prior criminal antecedents, particularly those of Seema, who had twelve previous cases, including seven under the NDPS Act.

“The trial court also disregarded material facts which ought to have been given due weight. Accused Seema’s SCRB report shows twelve prior criminal involvements…The complete omission to consider this material reflects a clear non-application of judicial mind to a mandatory statutory requirement.”

The High Court stressed that past involvement in NDPS cases directly impacts the second prong of Section 37(1)(b) — whether the accused is likely to reoffend — and the trial court's silence on this point made the bail order manifestly illegal.

“No Bar on Female Officers in Raids – Section 50(4) Rather Mandates It”

The respondents had sought to question the legality of the raid on the ground that a female constable was part of the raiding team and no public witnesses were joined. Both arguments were decisively rejected.

Justice Dudeja clarified that Section 50(4) of the NDPS Act mandates the presence of a female officer when a female accused is to be searched, and that presence of a lady constable is not only permissible but necessary in such situations.

On the lack of public witnesses, the Court observed: “Non-joining of public witnesses, while desirable, does not automatically vitiate the prosecution case if the testimony of official witnesses is reliable…At the stage of bail, the Court is not to conduct a roving or meticulous analysis of evidence.”

High Court Relies on Supreme Court Precedents – Puran, Rajesh, Ajay Kumar Singh

The Court relied on several Supreme Court decisions to reinforce its view that bail orders violating Section 37 are legally unsustainable. Particularly, in Union of India v. Ajay Kumar Singh @ Pappu (2023), the apex court had struck down bail where commercial quantity was involved and Section 37 was not followed.

Quoting from Ajay Kumar Singh, Justice Dudeja held:

“The High Court has not recorded any finding that the respondent-accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail…In the absence of recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail.”

Further, in Puran v. Rambilas (2001) 6 SCC 338, the Supreme Court had held that perverse bail orders, passed in disregard of statutory mandates, must be cancelled. The High Court held that the present case squarely attracted this principle, and intervention was necessary.

“Bail Granted in Breach of Statutory Safeguards Must Be Revoked” – Respondents Directed to Surrender

In conclusion, the Court categorically held that:“The impugned orders granting bail to the accused persons/respondents are manifestly illegal, perverse, and contrary to binding precedent as well as statutory mandate…They cannot be sustained and are liable to be set aside.”

Accordingly, the bail orders dated 15.06.2024 (Seema), 25.06.2024 (Shilpa), and 12.07.2024 (Akash) were cancelled, and the respondents have been directed to surrender before the Superintendent Jail within three days.

Date of Decision: 01 December 2025