When the FSL Report Does Not Say Heroin: Bail in an NDPS Case

In Afsana v. State of NCT of Delhi (BAIL APPLN. 3403/2026, decided 3 November 2026), the Delhi High Court granted regular bail to a woman accused of supplying 300 grams of heroin, after the Forensic Science Laboratory report found that the seized substance did not contain diacetylmorphine — the chemical that constitutes heroin under the NDPS Act. Justice Mini Pushkarna held that the recovered material was not the contraband alleged, that the rigours of Section 37 were therefore not attracted, and that a year of custody with the trial yet to begin tilted the balance towards liberty.

The case in one view

The prosecution case

On an informer’s tip that the petitioner was supplying heroin, a trap was laid and she was apprehended on the morning of 29 August 2025. Her bag allegedly contained 300 grams of heroin, which field-tested positive. Her disclosure was said to have led to the arrest of co-accused from whom a further 712 grams was recovered, and then to two more arrests with smaller recoveries. The chargesheet was filed on 20 February 2026, and the case before the Special Judge (NDPS), Rohini Courts, stood at arguments on charge. Two earlier bail applications had been dismissed by the Special Court.

The FSL report changed the complexion of the case

The turning point was the Forensic Science Laboratory report of 7 April 2026. It identified 6-monoacetylmorphine, acetylcodeine, morphine, codeine and noscapine in the sample — but not diacetylmorphine, the chemical that is heroin for the purposes of the NDPS Act. Relying on a line of authority including Aditya Kumar v. Union of India (Allahabad High Court, 2022), Dharmender v. State (Delhi High Court, 2020) and Taslima v. State NCT of Delhi (Delhi High Court, 2026), the Court held that “the substance recovered from the petitioner is not contraband as it does not contain ‘Diacetylmorphine’,” and that the rigours of Section 37 NDPS Act “are not applicable.”

The prosecution’s answer — that the heroin “may have degraded” in storage — did not persuade the Court at the bail stage. Whatever role such an explanation may play at trial, it could not re-erect the statutory bar once the laboratory had failed to find the defining chemical.

The human and procedural factors

The Court also weighed the familiar bail matrix. The petitioner argued that no independent witnesses joined the search and no videography was carried out as contemplated by Section 105 BNSS. She is a woman, the mother of two children aged five and two, and the family’s sole breadwinner, with no antecedents. Investigation was complete and the chargesheet filed; none of the twenty-three prosecution witnesses had been examined; charges were yet to be framed; and she had spent roughly a year and a month in custody with satisfactory jail conduct. A co-accused had already been granted bail. Concerns about influencing witnesses, the Court held, could be met by conditions rather than continued detention.

Conditions of release

The practice point

NDPS bail litigation is often fought — and lost — on quantity. This decision is a reminder that the chemistry comes first: the statutory classification, and with it the Section 37 bar, depends on what the FSL actually finds, not on what the seizure memo says. Defence counsel should obtain and read the FSL report line by line against the statutory definitions, and where the defining compound is absent, put that discrepancy at the front of the bail plea. For the prosecution, the case underlines the importance of prompt sampling, proper storage and timely forensic analysis — gaps there can decide custody long before they decide the trial.