‘Small-quantity drug offenders eligible for bail under NDPS Act’

Chandigarh: In a significant ruling, the Punjab and Haryana High Court has held that individuals caught with small quantities of drugs are entitled to bail, a decision that could impact law enforcement practices under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

Justice Anoop Chitkara, while granting anticipatory bail to Kuldeep Singh alias Keepa, stated that offences involving small quantities of drugs do not fall under the stringent bail provisions of Section 37 of the NDPS Act. The court noted that detaining first-time offenders for minor recoveries would undermine judicial discretion in bail matters.

Kuldeep Singh had sought anticipatory bail after being implicated in a case under Section 21(a) of the NDPS Act, based on the alleged confession of a co-accused. According to the prosecution, police in Talwandi Sabo, Bathinda district, recovered one gram of heroin from Gurdeep Singh on October 18, 2024. During questioning, Gurdeep allegedly stated that he had purchased the drug from Kuldeep, leading to his implication.

The trial court denied anticipatory bail, prompting Kuldeep to approach the high court. His counsel argued that the confession, made to a police officer, was inadmissible as evidence.

Moreover, since the recovered quantity was categorised as “small” under the NDPS Act, the offence should be considered bailable.

Justice Chitkara observed that not all offences under the NDPS Act are automatically non-bailable. “If an accused does not get anticipatory bail even in such a case, then the enactment of Section 482 BNSS, 2023 (analogous to Section 438 CrPC) itself shall become redundant, which cannot be the legislative intention,” he stated.

The court noted that while Section 37 of the NDPS Act declares offences involving “commercial quantities” as non-bailable, it does not impose the same restriction on small quantities.

“Had the legislature intended to render all offences under the NDPS Act non-bailable, it would have expressly provided so,” the ruling stated.

Citing the Supreme Court’s verdicts in Tofan Singh v. State of Tamil Nadu and State of Haryana v. Samarth Kumar, the court reiterated that confessions to police officers under the NDPS Act are inadmissible in court.

The judgment clarified that as per the First Schedule of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, offences punishable by imprisonment of less than three years are classified as bailable. Since possessing a small quantity of heroin under the NDPS Act carries a maximum punishment of one year, it qualifies as a bailable offence.

Justice Chitkara remarked that the classification of drug quantities into small, intermediate, and commercial ensures proportionality in sentencing and bail provisions.

“Ignoring this classification would be contrary to legislative intent,” he said.

The court cited similar high court rulings from Allahabad, Kerala, and Bombay, which have held that small-quantity offences under the NDPS Act are bailable.

“The heading of Section 37, which states ‘Offences to be Cognizable and Non-Bailable,’ does not categorically apply to all offences under the Act,” he

pointed out.

Justice Chitkara emphasised that the title of a legal provision should be read in conjunction with its contents. “The words of the enactment must take precedence over its title,” he asserted.

This ruling is expected to influence law enforcement strategies in Punjab and Haryana, where drug-related cases are prevalent.

Justice Chitkara also warned against arbitrary detentions under the NDPS Act. “When an individual is found with a small quantity of drugs, the law does not mandate that he be treated the same as a trafficker. The principle of fairness must be upheld,” he said.

The court directed police officials to adhere strictly to legal provisions regarding bail. “A suspect or accused is entitled to bail for small quantity offences under Section 436 of the Criminal Procedure Code, without requiring court intervention. The police must ensure that suspects are released on bail if they comply with legal requirements,” he stated.