Regular Bail in Narcotic Drugs and Psychotropic Substances Act (NDPS Act) : Section 23 : Punishment for contravention in relation to poppy straw or cannabis plant – in Punjab and Haryana High Court at Chandigarh

Overview of the NDPS Act and Section 23

The Narcotic Drugs and Psychotropic Substances Act (NDPS Act) of 1985 is a statute implemented by the Government of India with the intention of combating drug abuse and illegal drug trafficking. The act prohibits a person from producing/manufacturing/cultivating, possessing, selling, purchasing, transporting, storing, and/or consuming any narcotic drug or psychotropic substance. Under the provisions of this act, the government has the power to regulate and control operations relating to narcotic drugs and substances, with the ultimate goal of preventing their abuse and ensuring that they are used only for medical and scientific purposes.

Section 23 specifically deals with the punishment for the involvement in illegal activities relating to the import into India, export from India, or transshipment of narcotic drugs and psychotropic substances. The section lays down the penalties that can be imposed on individuals who are found guilty of such offenses. The punishment prescribed under Section 23 is stringent, reflecting the seriousness with which the act treats offenses related to narcotic drugs and psychotropic substances. Penalties including a jail term and fines can range depending on the quantity of drugs involved—small, more than small but less than commercial, or commercial quantity. The harshness of the punishment serves as a deterrent to those who might consider engaging in illicit drug trade.

The act characterizes different quantities of drugs and applies varying degrees of punishment accordingly. ‘Small quantity’ and ‘commercial quantity’ are two crucial determinants in the act that influence the extent of the penalty. For instance, for substances categorized as ‘small quantity’, the punishment could be rigorous imprisonment for up to six months, or a fine, or both. On the other hand, offenses involving substances greater than ‘small quantity’ but lesser than ‘commercial quantity’ can lead to imprisonment for up to 10 years and also include a financial penalty. The most severe punishment is meted out for ‘commercial quantity’ offenses, which can lead to imprisonment stretching from 10 to 20 years alongside a substantial fine.

Furthermore, the NDPS Act under Section 23 also extends to the coverage of preparations containing narcotic drugs or psychotropic substances, offering a comprehensive framework to address the challenge that the illegal drug trade presents. The section operates under the premise of a zero-tolerance policy against narcotics and to make drug trafficking financially unviable for those involved. By establishing severe punishments, the act aims to act as a powerful tool in the ongoing battle against drug-related crimes in India.

Criteria for Granting Regular Bail under the NDPS Act

The criteria for granting bail under the NDPS Act are stringent due to the comprehensive nature of the Act and the serious outlook of the Indian judiciary towards drug-related offenses. Bail under this Act is not a matter of right, and the courts are generally cautious in granting it, especially in cases involving commercial quantities of controlled substances. However, there are several factors that the court considers while deciding on a bail application:

  • Judicial discretion: While bail provisions under the NDPS Act are restrictive, courts have the discretion to grant bail based on the facts and circumstances of each case. The quality of evidence and the role of the accused in the offense play a crucial role in the judicial decision-making process.
  • Severity of the offense: The quantity of the drug seized—small, more than small but less than commercial, or commercial quantity—significantly influences the decision to grant bail. Bail is more readily available in cases involving small quantities of drugs.
  • Prima facie case: The court assesses whether there is a prima facie case against the accused. If the accusations appear to be weak or unsubstantiated, the courts may be inclined to grant bail.
  • Risk of flight: If the accused is likely to flee or not appear for the trial, bail may be denied. The court will consider the accused’s background, including any previous absconding behavior or lack of strong ties to the community.
  • Chances of tampering with evidence or influencing witnesses: An accused with the potential to tamper with evidence or influence witnesses is less likely to get bail, to safeguard the integrity of the trial process.
  • Length of detention: As the proceedings under the NDPS Act can be lengthy, the total time the accused has already spent in detention may be considered, particularly if it is disproportionate to the gravity of the offense.
  • Health conditions: Special circumstances such as the accused’s health condition may also be a factor, especially if they require medical treatment that cannot be adequately provided in custody.
  • Behavior of the accused during custody: If the accused has displayed good behavior during custody and investigation, the court might consider this a factor in favor of granting bail.
  • Probability of repeating the offense: If the court deems that the accused is likely to commit a similar offense upon release, bail may be denied.

Nevertheless, it is important to remember that the criteria for bail under the NDPS Act are not exhaustive or rigid. Each case is unique, and thus, courts must balance the individual’s right to liberty with the collective interest of the community against drug abuse and trafficking. Regular bail can either be denied or granted depending upon the collective consideration of these factors by the court.

Case Precedents and Judgments from Punjab and Haryana High Court

In addressing the specific role played by the Punjab and Haryana High Court in interpreting and implementing the stringent bail provisions of the NDPS Act, a number of case precedents highlight the Court’s approach towards bail applications in drug-related offenses. The High Court, through its judgments, has provided crucial insights into how the provisions of the NDPS Act should be applied in various circumstances, thereby influencing the broader legal discourse on the matter.

One notable judgment where the High Court extensively deliberated on NDPS cases was in the matter of Rakesh Kumar Paul vs The State of Assam. In this case, while not directly from Punjab and Haryana, the Supreme Court’s directives were considered as a guiding principle to determine the grant of bail, emphasizing the need for individualized judicial inquiry into the facts of each case rather than blanket application of stringent NDPS provisions.

Additionally, the Punjab and Haryana High Court has been actively involved in clarifying the operational nuances of bail considerations by taking into account factors such as the quantum of drugs seized, the role of the accused, the conduct of the accused during custody, and the likelihood of tampering with evidence or witnesses. The court’s judgements have underscored that these considerations should not be applied mechanically but rather with due respect to the spirit of the law, which aims to balance the rights of the accused with the public interest.

For instance, in a recent judgment, the Punjab and Haryana High Court dealt with an application for bail concerning an accused charged under Section 22 of the NDPS Act. The accused was allegedly found to be in possession of a commercial quantity of a prohibited substance. The High Court, while acknowledging the severity of the offense, carefully scrutinized the available evidence, the probability of the accused repeating the offense, and the period of detention already undergone by the accused before arriving at a decision to grant or deny bail.

Cases such as this one highlight the essential checks and balances that the judiciary applies to prevent the potential miscarriage of justice and undue hardship on the accused while underlining the deterrent nature of the NDPS Act. However, these judgements also make it clear that while drug trafficking is viewed as a serious crime, the provision for bail is not entirely foreclosed but requires careful and comprehensive analysis by the courts.

The court judgments emanating from the Punjab and Haryana High Court thus serve as a repository of legal reasoning and principles that other courts refer to while dealing with bail applications under the NDPS Act. These decisions pave the way for a nuanced application of the law, ensuring that the underlying objective of the NDPS Act—to combat drug trafficking while upholding individual rights—is maintained.


List of Most Recommended Lawyers:


1. Advocate Kabir Sharma
  • Experience: more than 20 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

2. Advocate Tara Saxena
  • Experience: more than 25 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

3. Advocate Aryan Singhania
  • Experience: more than 35 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

4. Advocate Avni Desai
  • Experience: more than 40 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

5. Advocate Kiara Malhotra
  • Experience: more than 30 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

6. Advocate Zayn Chawla
  • Experience: more than 50 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

7. Advocate Ishani Singh
  • Experience: more than 30 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

8. Advocate Vihaan Khanna
  • Experience: more than 25 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

9. Advocate Ananya Malhotra
  • Experience: more than 20 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer

10. Advocate Aarav Saxena
  • Experience: more than 45 years
  • Expertise: Quashing matters
  • Practice Area: Criminal Lawyer