Bail Granted Despite Commercial Quantity: 259g Morphine Recovery 'Marginally Above' Limit, Delhi HC Rules Trial Delay Trumps NDPS Rigours

In a ruling delivered on 2026-10-07, the Delhi High Court granted regular bail to a man accused of possessing 259 grams of morphine—an amount just nine grams above the threshold that defines a commercial quantity under India's narcotics law. The decision, by Justice Amit Bansal, confronts a hard question: when does the right to a speedy trial outweigh the stringent bail restrictions of the NDPS Act?

The case, Sunny v. State of NCT of Delhi (BAIL APPLN. 2008/2026), arises from FIR No. 172/2025 registered at the Crime Branch (South-East). Sunny was arrested on 6 July 2025 after patrolling officers allegedly found the morphine in his possession. He has been in custody for over two years. The prosecution's case also led to the arrest of a co-accused, Lalit, from whom 114 grams of morphine was recovered.

Section 37 NDPS Act: The Hurdle for Bail

Under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, courts cannot grant bail for commercial quantity offences unless satisfied that the accused is not guilty and will not commit further offences. The provision effectively reverses the presumption of innocence for such offences. Morphine's commercial quantity threshold is 250 grams—Sunny's alleged recovery exceeds it by 3.6 percent.

Justice Bansal's order acknowledges this but refuses to treat the nine-gram excess as decisive. "The recovery made from the applicant was 259 gms, which is marginally above the commercial quantity," the court notes, adding that "the strict application of the rigours of the NDPS Act may not be justified and warrants a more nuanced consideration."

Trial Delay: The Right to Life Under Article 21

The court leans heavily on Supreme Court precedent. It cites Badsha SK. v. State of West Bengal (2023), where bail was granted after two years of custody with trial yet to begin, and Man Mandal & Anr. v. State of West Bengal (2023), where almost two years in jail without prospect of a timely trial justified release. Most pointedly, the order quotes Dheeraj Kumar Shukla v. State of U.P. (2023 SCC OnLine SC 918): "It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed."

From these rulings, Justice Bansal distils a principle: "prolonged incarceration undermines the right to life, liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act."

This is not an isolated judicial whim. It reflects a growing recognition that India's criminal justice system, plagued by backlogs, cannot hold undertrials indefinitely while calling it public safety. The order notes that though the chargesheet has been filed and charges framed, "the recording of evidence is yet to begin and the same will take considerable time."

Parity and Antecedents: The State's Objections

The prosecution opposed bail on two grounds: that the commercial quantity triggers Section 37, and that Sunny cannot claim parity with co-accused Lalit, who was granted bail by the Sessions Court on 16 May 2026 because the recovery from him was of intermediate quantity, not commercial. The State also pointed to an earlier FIR against Sunny—FIR No. 927/2015 under Sections 323, 341, 452, 308, 506, 34 IPC at PS Jyoti Nagar. Sunny's counsel countered that he had been granted bail in that case as well, and it concerned an entirely different offence.

The court does not explicitly reject the parity argument, but its reliance on delay effectively sidesteps it. The nine-gram excess becomes less about statutory classification and more about whether the punitive consequences of that classification—years in jail before trial—are proportionate.

What This Means for Undertrials and Their Families

For the thousands of undertrials in India's overcrowded jails facing NDPS charges, this order offers a sliver of hope. It signals that judges are willing to look beyond the arithmetic of quantity to the reality of a slow trial. The ruling does not dilute Section 37, but it carves out a space where Article 21 can breathe.

Critics might argue that relaxing bail for commercial quantities risks releasing drug offenders. But the alternative—keeping people in custody for years without conviction—punishes them before guilt is proven. For Sunny, the bail comes after more than two years. His trial is still at the starting line. The court's decision ensures that his liberty, at least conditionally, is not another casualty of delay.

This judgment is a reminder that even in the war on drugs, the Constitution does not suspend its guarantees. As the court puts it, conditional liberty must take precedence.