Bail in NDPS Small and Intermediate Quantity Cases

Is an NDPS small quantity case bailable?

Yes. Where the quantity is small, possession, purchase, sale or transport of the drug is punishable with rigorous imprisonment of up to one year, or a fine of up to ₹10,000, or both. Under the First Schedule of the BNSS, offences under special laws punishable with less than three years are bailable, and nothing in the NDPS Act changes that. Section 37(1)(a) of the NDPS Act makes every NDPS offence cognizable, which is why the police can arrest without a warrant, but it does not make a small quantity offence non-bailable.

So a person arrested with a small quantity is entitled to be released on furnishing a bail bond under BNSS section 478, either at the police station or by the magistrate on production. The police cannot keep the person in custody simply because the case is under the NDPS Act. If they do, the family should go straight to the duty magistrate with the arrest memo and the seizure memo, which show the quantity.

Consumption alone, under section 27, is treated even more leniently: up to one year for cocaine, morphine, heroin and certain other drugs, and up to six months for the rest. These cases are also bailable, and for users the law offers a treatment route that can end the prosecution altogether, explained further down.

How the quantity band changes the bail position

The NDPS Act grades punishment by quantity. The band decides which court hears bail and how strict the test is.

Intermediate quantity is not a separate category in the notified table. It is simply whatever lies above the small quantity figure and below the commercial figure for that drug. A case can move from one band to another when the laboratory report or a proper reweighing changes the number, which is why the quantity is the first thing to test.

What counts as small and intermediate quantity for common drugs

These ranges come from the Central Government's notified table of small and commercial quantities. Check the current notification for the exact drug in your case, since the table covers many more substances than these.

How is the quantity worked out, and can it be challenged?

The quantity is the weight of what was seized, including any neutral substance mixed with the drug. The Supreme Court settled this in Hira Singh v Union of India (2020): purity does not reduce the weight for deciding the band. So 8 grams of street smack that is mostly filler is still an intermediate quantity of heroin.

That does not make the police figure final. The defence looks at whether the polythene, foil or container was weighed with the drug, whether the weight was recorded on a proper electronic scale at the spot or only estimated, whether separate packets recovered from different people were added together without any basis, and whether the inventory prepared later matches the seizure memo. For ganja, the statutory definition covers the flowering or fruiting tops of the cannabis plant and excludes seeds and leaves that are not accompanied by the tops, so the composition of a large bundle can matter.

Small differences decide bands. A charas recovery recorded as 104 grams sits just over the small quantity line; if the packet weighed 6 grams on its own, the drug itself is below 100 grams. Arguments of this kind are not technicalities. They decide whether the person is entitled to bail at the police station or must apply to a Sessions-level court.

Who grants bail in a small quantity case: police, magistrate or special court?

In a small quantity case the police can and should release the person on a bail bond at the police station. Many arrests in these cases are avoidable in any event: the offence carries less than seven years, so the police are expected to consider a notice of appearance under BNSS section 35 instead of arrest, in line with the Supreme Court's guidance in Arnesh Kumar v State of Bihar (2014). Our post on the police notice under section 35 BNSS explains what that notice requires of you.

If the person is produced in court, the magistrate grants bail on a bond, with or without a surety. Offences punishable with three years or less under the NDPS Act are triable by a magistrate and may be tried summarily under section 36A(5), so small quantity cases usually stay at the magistrate level for the whole case.

Where the police record the quantity as small but still refuse release, or record one packet as small and add a second packet found nearby to push it into the intermediate band, the family should not wait for the next day. Approach the court with copies of whatever memos the police have handed over and ask for the person to be produced and released.

Bail in intermediate quantity cases: what does the special court look at?

Intermediate quantity offences are non-bailable and, because they carry more than three years, are triable only by the special NDPS court under section 36A. In Delhi these courts are Additional Sessions Judges designated as special judges in each district court complex, such as Tis Hazari, Rohini, Dwarka, Saket, Karkardooma and Patiala House. Cases from Noida go to the Gautam Buddh Nagar court at Surajpur and cases from Ghaziabad to the Ghaziabad district court. The bail application is filed before the special court of the district where the FIR was registered.

Because section 37 does not apply, the court decides bail under BNSS section 483 on the same principles as in any non-bailable case: the nature and gravity of the accusation, the strength of the material, the accused's criminal antecedents, the chance of absconding, the risk of tampering with evidence or influencing witnesses, and how long the person has already spent in custody. The Supreme Court's broad guidance in Satender Kumar Antil v CBI (2022), that bail is the rule and jail the exception in offences that do not carry special statutory restrictions, is regularly cited in these applications.

In practice the factors that move the court are concrete: a first-time accused with a fixed address and a job, a quantity towards the lower end of the band, recovery from a place several people could access rather than from the person's pocket, a seizure that does not show proper procedure, and a case where the investigation is largely over because the contraband is already in the malkhana and the samples are with the laboratory.

Does section 37 ever creep into an intermediate quantity case?

It should not, but the police sometimes try to bring it in. Section 37 applies to commercial quantity and to offences under section 19 (embezzlement of opium by a licensed cultivator), section 24 (external dealings) and section 27A (financing illicit traffic and harbouring offenders). If the FIR adds section 27A to an intermediate recovery, or invokes section 29 (abetment and criminal conspiracy) to tie the accused to a larger commercial seizure made from someone else, the prosecution will argue that the twin conditions apply.

The answer lies in the record. A conspiracy charge needs material beyond the say-so of a co-accused, and section 27A needs evidence of financing or harbouring, not just the fact that two people knew each other. When Advocate B.K. Singh prepares an intermediate quantity bail application, he looks first at whether any section has been added that changes the bail test, and if so, at whether there is a single document in the file that actually supports it. Where there is not, the application says so on its first page.

How an intermediate quantity bail application moves in Delhi

The sequence below is typical for a police case in a Delhi district. NCB cases follow a similar path, usually before the special court at Patiala House.

1. Collect the first papers

   Get the arrest memo, the seizure memo, the personal search memo and the FIR number from the police or from the remand file. If the family has nothing in writing, the advocate can inspect the remand papers in court.

2. Watch the first remand

   The person is produced before the court within 24 hours. The police may ask for police custody; in small recoveries where the drug is already seized, there is usually little to justify more than judicial custody, and that point can be argued at remand.

3. File the bail application

   The application goes to the special NDPS court of the district. It should state the quantity, the band, the date and place of recovery, the sections invoked, the custody period and the specific weaknesses in the record, with the memos annexed.

4. Prosecution reply and status report

   The court calls for a reply from the public prosecutor and a status report from the investigating officer, usually returnable within a few days. The report states whether the FSL report has arrived, whether the accused has other cases, and the stage of investigation.

5. Hearing and order

   Arguments are short and focused. If bail is granted, the order fixes the bond amount, the number of sureties and conditions such as appearing on every date and not leaving Delhi NCR without permission.

6. Furnish the bond and surety

   The surety brings identity and address proof and documents showing means, such as an FD, vehicle registration or property papers. The court or the police verify the surety, and a release warrant is sent to the jail, often the same evening.

7. If refused, go to the High Court

   A refusal by the special court is challenged by a fresh bail application under BNSS section 483 before the Delhi High Court for Delhi cases, or the Allahabad High Court for Noida and Ghaziabad cases.

What helps a bail application, and what does not

What helps is specific and on the record. A seizure memo that records no attempt to join independent witnesses at a crowded spot, a personal search where the section 50 option of being searched before a gazetted officer or magistrate was not properly given, a long gap before the samples were sent to the laboratory, sampling that did not follow section 52A and the 2022 rules on seizure, storage and sampling, or a mismatch between the weight in the seizure memo and the weight in the inventory: each of these is a point the court can see on paper today.

What helps less than people expect is general material. An application that says the accused is falsely implicated, is young, or is the sole earner, without anything more, rarely persuades. Neither does a bundle of thirty judgments. One accurate page reference to the seizure memo usually does more work than ten citations.

Courts also look at parity. If a co-accused with the same role and a similar quantity has been granted bail, that order should be placed before the court. Parity does not apply where the roles differ, for example where one person was found with the drug and another was only a passenger in the same car.

Users, addicts and the treatment route under sections 64A and 39

The NDPS Act treats drug users differently from people who deal. Under section 64A, an addict charged with consumption under section 27, or with an offence involving a small quantity, who voluntarily seeks de-addiction treatment at a hospital or institution maintained or recognised by the government or a local authority and undergoes that treatment, is not liable to prosecution for that offence. The immunity can be withdrawn if the treatment is not completed.

Section 39 gives the court a second route: where a person is found guilty of consumption or a small quantity offence, the court may release them on probation for treatment instead of sentencing them. Both routes need a genuine record: admission papers from a recognised centre, a treatment plan and progress reports. Families who want to use them should collect these early, because a treatment record started after arrest but before the next date carries weight with the court.

These provisions do not help in intermediate quantity cases, where the law presumes the quantity is more than personal use. But in a borderline case where the recovered quantity is close to the small quantity line, evidence of addiction can still support the argument that the drug was for personal consumption rather than sale.

Papers to gather for an NDPS bail application

Most delays in NDPS bail come from missing papers rather than from the law. Collect these in the first two or three days.

Bail conditions you should expect

Courts usually impose standard conditions in NDPS bail orders: appear on every date, do not leave Delhi NCR or the country without permission, do not contact witnesses, keep the mobile number given to the court active, and inform the investigating officer of any change of address. Some orders also require periodic attendance at the police station for a few weeks or months.

Conditions must be connected to the purpose of bail. The Supreme Court has disapproved conditions that let the police track an accused's location continuously, and courts can relax conditions that make work or study impossible. If a condition is a problem, apply to change it rather than ignoring it; our post on changing or relaxing bail conditions in Delhi courts explains how. Breaching a condition is the quickest way to lose bail.

If bail is refused: the High Court, a fresh application and default bail

A refusal by the special court is not the end. The next step is a bail application under BNSS section 483 before the High Court, which considers the matter afresh. The High Court application should not repeat the trial court application word for word; it should deal with the reasons the special court gave for refusing.

A fresh application can also be made before the special court when circumstances change: the chargesheet has been filed, the FSL report has come and shows a different weight or substance, a co-accused has been granted bail, or the person has spent a substantial period in custody. In intermediate quantity cases, the ordinary BNSS time limits for filing the chargesheet apply, not the extended 180 days used in commercial quantity cases, and if the police miss the deadline, the accused has an indefeasible right to default bail when the chargesheet is not filed in time, provided the application is made before the chargesheet comes in.

For long-running cases, BNSS section 479 also matters: an undertrial who has served half the maximum sentence must generally be released, and a first-time offender after one third. Our post on release of undertrials under section 479 BNSS explains how that is calculated.

Can you get anticipatory bail in an NDPS intermediate quantity case?

Yes, anticipatory bail under BNSS section 482 is available in intermediate quantity cases, since section 37 does not apply. It is most often sought where nothing was recovered from the applicant and the name has come up in a co-accused's statement or in phone records. Courts are more cautious where recovery was made from the applicant's own house or vehicle.

Statements made to police or NCB officers carry limited weight here. In Tofan Singh v State of Tamil Nadu (2020), the Supreme Court held that officers under the NDPS Act are police officers and a confessional statement recorded under section 67 cannot be used as a confession against the accused. A case that rests only on what a co-accused told the police is therefore weak, and that is often the core of an anticipatory bail application. The general procedure is in our post on anticipatory bail in Delhi under section 482 BNSS.

Mistakes that cost families time in NDPS bail

• Not reading the seizure memo. The quantity, the time, the witnesses and the search procedure are all there. Families often sign for its receipt and never look at it.
• Filing in the wrong court. An intermediate quantity bail filed before a magistrate, or in the wrong district, loses days.
• Letting the accused explain things to the police. Statements made in custody are rarely helpful to the defence, and often harm it in other ways even if not admissible as confessions.
• Paying someone who promises to settle the case. NDPS cases cannot be settled or compounded. Anyone claiming otherwise is a risk to you.
• Surety papers not ready. Bail granted at 3 pm is wasted if the surety's documents are not in court by 4 pm.
• Missing dates after bail. A non-bailable warrant on a missed date undoes all the work and makes the next bail much harder.

What to do this week after an NDPS arrest

• Find out the FIR number, police station and sections invoked.
• Get a copy of the seizure memo and note the exact weight and drug.
• Check the weight against the small and commercial figures for that drug.
• Ask whether a section 52A sampling application has been moved and when.
• Collect the accused's identity, address and employment papers.
• Line up a surety with identity proof and documents of means.
• If the person is a user, get records from a recognised de-addiction centre.
• Write down the date of arrest and calculate the 60 or 90 day default bail date.

How we approach small and intermediate quantity bail

In NDPS bail matters, the work is mostly reading: the seizure memo against the inventory, the timings against the call records if the defence has them, and the procedure against the statute. A point Advocate B.K. Singh often makes to families is that an intermediate quantity case is decided on ordinary bail principles, so the application should look like an ordinary bail application, focused and factual, not a recital of everything ever written about drug law. Advocate Sadhna Singh usually coordinates the papers and surety documents so that release is not delayed once bail is granted.

Our wider bail practice in Delhi NCR and our page on criminal cases in Delhi's courts explain how we work across the district courts and the High Court. If you want an advocate to read the seizure memo and tell you which band the case falls in and which court to approach, the team of Advocate B.K. Singh can look at the papers through our online enquiry page.