Section 37 of the NDPS Act erects twin hurdles against bail in commercial quantity cases — but the hurdles presuppose that the quantity is, in fact, commercial. On 29 October 2026, in Deepak @ Kaja v. The State (NCT of Delhi) & Anr., BAIL APPLN. 3931/2026, Justice Sachin Datta of the Delhi High Court granted regular bail to a man in custody for over two years in FIR No. 473/2023 of P.S. Shahbad Dairy, where the alleged recovery of 260 grams of heroin exceeded the commercial threshold of 250 grams by a sliver that the record could not confidently attribute to the contraband rather than its packaging. Parity with the co-accused wife, already on bail, completed the picture.
The case and its history
The FIR began elsewhere: heroin was recovered from three co-accused, and the investigation led a raiding team on 18 September 2024 to the house the petitioner shared with his wife. The prosecution alleged recovery of 260 grams of heroin concealed in a polythene bag inside a pair of shoes. Both spouses were arrested; a supplementary chargesheet followed in March 2025; charges under Sections 21(c), 25 and 29 of the NDPS Act were framed in July 2025; and the trial stood at the stage of prosecution evidence.
The petitioner's first approach to the High Court had ended in withdrawal — his affidavit of antecedents was inadequate — with liberty to refile. The trial court dismissed his bail application in September 2026, relying on the commercial quantity, the rigours of Section 37 and his fourteen prior cases. The renewed application before the High Court succeeded.
The three pillars of the order
Bail was granted on a personal bond of Rs. 50,000 with one surety, coupled with conditions: regular attendance at trial, no departure from the NCT of Delhi without leave, monthly reporting to the SHO, and no contact with witnesses. The court recorded that nothing in the order reflects on the merits.
Why the weight of the packaging matters
The Supreme Court has long required that the quantity attributed to an accused be determined with care, and bail courts routinely confront seizures that hover around a statutory threshold. The difference is not academic: below the commercial line, bail is governed by ordinary principles; above it, Section 37 demands reasonable grounds to believe the accused is not guilty. Where the gross weight includes packaging material and the net weight is unclear, the benefit of that uncertainty at the bail stage goes to the accused — the prosecution cannot claim the stricter regime on a record that does not clearly establish its factual premise.
Equally instructive is the treatment of antecedents. Fourteen prior cases is a formidable list, but the court looked at outcomes rather than entries: none had ended in conviction, and apprehensions about conduct on bail were met with conditions rather than refusal. The order thus reflects both strands of modern bail jurisprudence — scepticism toward incarceration as a default, and confidence in tailored conditions as the instrument of control.
Practical pointers
In NDPS defence, obtain and scrutinise the seizure memo, FSL report and weighment record: whether the recorded weight is gross or net, and what the packaging weighed, can decide which bail regime applies.
Document the custody period and the pace of trial precisely — number of witnesses examined against those cited is the arithmetic courts respond to.
Where a co-accused with a comparable role has bail, plead parity with specifics: date of the order, the role ascribed to each accused, and the absence of distinguishing features.
File a complete and candid affidavit of antecedents; an inadequate affidavit cost this petitioner months.
Frequently Asked Questions
What makes a quantity "commercial" under the NDPS Act, and why does it matter?
Each notified substance has a small quantity and a commercial quantity threshold; for heroin the commercial threshold is 250 grams. Once the case involves commercial quantity, Section 37 requires the court, before granting bail, to be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to offend on bail — a far more demanding standard than ordinary bail.
How did the court deal with a recovery of 260 grams against a 250-gram threshold?
The court noted that the recorded weight included a transparent wax bag and that the net weight of the seized contraband was not clearly borne out from the record. A margin of ten grams, potentially attributable to packaging, left the commercial character of the quantity genuinely doubtful at the bail stage.
Do previous criminal cases automatically defeat a bail plea?
No. The petitioner had fourteen previous cases, four under the NDPS Act, but none had resulted in conviction. The court held that the concern arising from antecedents could be addressed through stringent conditions — monthly reporting to the SHO, no contact with witnesses and restrictions on leaving Delhi — rather than continued incarceration.
What role did parity play in the grant of bail?
The contraband was recovered from a house the petitioner shared with his wife, who had been granted bail in April 2026. The court held that on the touchstone of parity the petitioner was entitled to the benefit of the same considerations, there being no meaningful distinction in the roles attributed to the two.