Allahabad High Court holds NDPS Act’s Section 37 bail restrictions do not apply to constitutional courts while granting bail in 100-kg ganja case

The applicant sought bail in Case Crime No. 162 of 2025, Police Station Gauriganj, District Amethi, registered under Sections 8/20/29/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The prosecution alleged that the applicant was apprehended while sitting in a blue Baleno car and that 14 bundles of suspected ganja were recovered from its boot. Following an alleged confession, the police proceeded to the applicant’s house under a Section 41(2) authorisation, where 22 further bundles were allegedly recovered.

The contents of all 36 bundles, weighing 100.200 kg, were emptied, mixed into a homogeneous substance, and repacked into four sacks.

The applicant had been in custody since 17 May 2025 and asserted that he had been falsely implicated; he also disclosed three other criminal cases in which he had been granted bail.

The FSL report confirmed that the recovered substance was ganja. However, the charge-sheet, which listed 21 prosecution witnesses, did not include the alleged independent recovery witnesses or the Deputy Superintendent of Police who was said to have supervised the search.

The applicant further contended that samples had not been drawn in the presence of a Magistrate or separately from each bundle as required by Rules 9 and 10 of the NDPS (Seizure, Storage, Sampling and Disposal) Rules, 2022.

Whether the restrictions under Section 37 of the NDPS Act apply to the High Court while exercising its special bail jurisdiction under Section 439 CrPC, in light of Section 36-A(3) of the NDPS Act?

Whether failure to draw samples in the presence of a Magistrate and failure to draw representative samples from each of the 36 bundles constituted a serious illegality affecting the prosecution case?

Whether the alleged defects in the search and recovery—including absence of signatures of the Gazetted Officer and independent witnesses and their omission from the charge-sheet—created sufficient doubt to justify bail?

The Court considered Sections 36-A(3), 37, 41(2), 52-A and 54 of the NDPS Act, together with Rules 9 and 10 of the 2022 Rules.

Section 37 ordinarily requires the Public Prosecutor to be heard and the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is unlikely to commit an offence while on bail.

Relying on Vimal Rajput v. State of U.P. and Ramji Singh v. Enforcement Directorate, the Court held that Section 36-A(3), which saves the High Court’s special powers under Section 439 CrPC, must be read harmoniously with Section 37; consequently, the Section 37 restrictions were treated as applicable to courts other than constitutional courts.

The Court distinguished Narcotics Control Bureau v. Kashif and Mehboob Shah v. State of Madhya Pradesh on the ground that the effect of Section 36-A(3) and Rules 9–10 had not been considered in those decisions.

Under Rule 9, samples must be drawn in the presence of a Magistrate after an application under Section 52-A(2), while Rule 10 requires one sample in duplicate from each package or container, subject to limited provisions for properly identical lots.

The Court also applied the principle that where the law prescribes a particular manner of performing an act, it must be performed in that manner or not at all, and relied on State of Punjab v. Baldev Singh, Tofan Singh v. State of Tamil Nadu, and Makhan Singh v. State of Haryana concerning strict compliance with safeguards in view of the severe punishments under the NDPS Act.

The Court found several circumstances creating prima facie doubt about the prosecution case.

The police team allegedly travelled in private vehicles, but the number and registration details of those vehicles were not disclosed.

Although 14 bundles were allegedly recovered from the vehicle, no recovery memo was prepared at the spot before the applicant was taken to his house.

The Court further observed that the 36 bundles had different weights and were not shown to bear identical markings; therefore, they could not properly be treated as one homogeneous lot under Rule 10.

Samples ought to have been drawn separately from each bundle, but instead all contents were emptied, mixed on the ground, and repacked into four sacks.

The alleged Gazetted Officer had not signed the recovery memo, the independent witnesses had not signed it, and none of them was named in the charge-sheet as a prosecution witness.

In the Court’s view, these defects, considered against the statutory requirement of strict procedural compliance and the severe consequences under the NDPS Act, were sufficient to raise reasonable doubt at the bail stage.

The bail application was accordingly allowed, and the applicant was directed to be released on furnishing a personal bond and two sureties of the like amount to the satisfaction of the competent Magistrate/Court.

Bail was subject to conditions that the applicant would not tamper with evidence, pressurise prosecution witnesses, or fail to appear on each date fixed by the trial court.

The Court clarified that its observations were confined to the determination of bail and would not affect the merits of the trial.