Bail under NDPS Act Despite Commercial Quantity: Prolonged Incarceration and Evidentiary Doubt as Grounds to Override Section 37 – Commentary on Sahil Sharma @ Maxx v. State (NCT of Delhi)

Bail under NDPS Act Despite Commercial Quantity: Prolonged Incarceration and Evidentiary Doubt as Grounds to Override Section 37 – Commentary on Sahil Sharma @ Maxx v. State Govt of NCT of Delhi, 2025 DHC 10798

I. Introduction

This commentary examines the Delhi High Court’s judgment in Sahil Sharma Alias Maxx v. State Govt of NCT of Delhi, BAIL APPLN. 3068/2025, decided on 03 December 2025 by Hon’ble Mr. Justice Amit Mahajan. The decision addresses regular bail in a prosecution under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) involving allegations of commercial quantity.

The ruling is significant for NDPS bail jurisprudence for at least four reasons:

  • It reiterates and applies the Supreme Court’s line of authority (particularly Mohd. Muslim and Rabi Prakash) that prolonged pre-trial incarceration and delay in trial can justify grant of bail notwithstanding the statutory embargo under Section 37 NDPS Act.
  • It treats evidentiary weaknesses at the threshold stage—such as an unexplained discrepancy between the field testing kit result and the Forensic Science Laboratory (FSL) report, and the lack of independent witnesses or photographic/video corroboration—as relevant in assessing whether there exist “reasonable grounds” to doubt guilt for the purposes of Section 37.
  • It clarifies that mere monetary transactions with co-accused, without evidence linking those transactions to narcotics dealing, are insufficient to establish complicity at the bail stage in NDPS cases.
  • It addresses the effect of a prior NDPS conviction with suspended sentence, holding that such a past involvement, particularly involving small quantity and pending appeal, does not automatically bar bail in a subsequent NDPS prosecution if other factors favour release.

Taken together, the judgment reinforces a constitutional counterweight to the otherwise stringent bail regime under the NDPS Act, grounding its reasoning both in evidentiary assessment and in Article 21 of the Constitution, especially in the context of delay and pre-trial incarceration.

II. Background and Facts

1. Parties and Procedural Posture

  • Applicant/Accused: Sahil Sharma alias “Maxx”.
  • Respondent: State Government of NCT of Delhi.
  • Case Type: Regular bail application in FIR No. 205/2023 dated 22.08.2023, PS Crime Branch.
  • Offences Alleged: Sections 20, 22 and 25 of the NDPS Act (offences relating to cannabis, psychotropic substances, and liability of certain persons in relation to premises/vehicles, respectively).
  • Court: High Court of Delhi at New Delhi.
  • Judge: Justice Amit Mahajan.
  • Judgment reserved: 21.11.2025; Pronounced: 03.12.2025.

2. Alleged Recovery and Chain of Events

The prosecution case, in brief, is as follows:

  • On 21.08.2023, acting on alleged secret information, police from the Crime Branch intercepted the applicant around 12:40 a.m. while he was travelling in a grey car towards Akhada near Chaupal street.
  • From the applicant’s person (pocket), the police allegedly recovered:
    • 67 grams of a substance initially said to be MDMA (ecstasy), which was later reported by FSL to be methamphetamine.
  • From the applicant’s car, the following recoveries are alleged:
    • 133 grams of MDMA in a white polythene under the driver’s seat;
    • 1200 grams of charas (cannabis resin) in the glove box in a zip-lock pouch;
    • 2580 grams of ganja (cannabis flowering/fruiting tops) in a black polythene in the boot of the car.
  • Subsequently, at the instance of the applicant, a search of his flat allegedly yielded 52 grams of MDMA/ecstasy.

At the applicant’s alleged instance, several other persons were implicated:

  • Six “riders” purportedly used to deliver contraband. Among them:
    • Sonu – alleged recovery of 53g of “hybrid ganja” and 1.87g of MDMA.
    • Chandan – alleged recovery of 54g of “hybrid ganja” and 2g of MDMA.
  • Co-accused L. Jicko Meitei – allegedly arrested at the applicant’s instance, with 4 kg of ganja recovered.
  • The applicant and co-accused Tanay Khatri allegedly disclosed involvement of Anand Singh @ Andy, who in turn allegedly named Lakshay Jain as the supplier. On co-accused Lakshay’s phone, three tracking IDs were allegedly found; three parcels were seized at Foreign Post Offices (FPO), Delhi and Mumbai, with cannabis recoveries of 112g, 112g, and 105.7g, respectively.

The prosecution also alleges that the applicant functioned as a kingpin of a delivery network, supplying drugs under the guise of a Flipkart-like service, and that there were bank transactions between him and some co-accused.

3. Applicant’s Prior NDPS Case

The State highlighted that the applicant had previously been convicted in an NDPS case in Haryana. However:

  • The contraband there was allegedly 20 grams of heroin – a small quantity.
  • An appeal against that conviction is pending before the Punjab and Haryana High Court.
  • The sentence in that case has been already suspended by the Punjab and Haryana High Court, which was aware of the pendency of the present Delhi NDPS case.

4. Stage of Trial

  • The applicant was arrested on 22.08.2023.
  • By the time of the High Court judgment (03.12.2025), only charges had been framed.
  • The matter was listed before the Trial Court on 28.03.2026 for evidence, indicating that the trial had not even commenced substantively.

Thus, as of the date of decision, the applicant had spent over two years in custody without effective progress in trial.

III. Summary of the Judgment

The Delhi High Court granted regular bail to the applicant notwithstanding:

  • the alleged recovery of commercial quantity of narcotics and psychotropic substances; and
  • the statutory embargo on bail under Section 37 of the NDPS Act.

The Court’s decision rests on a combination of factors:

  1. Evidentiary Doubts at the Bail Stage:
    • There was a clear discrepancy between the field testing kit result (indicating MDMA) and the FSL report (indicating methamphetamine) for the substance recovered from the applicant’s pocket. In the absence of supportive material for the prosecution’s explanation (about limitations of the kit), this inconsistency was treated as an ex facie infirmity benefiting the applicant at the bail stage.
    • There were no independent witnesses to the alleged public-place recovery, despite availability of time and opportunity, and there was no photography or videography of the recovery proceedings. Relying on its earlier decision in Bantu v. State Govt of NCT of Delhi, the Court held that such omissions, while not fatal per se at trial, can cast a shadow on the credibility of the prosecution case and must be considered at the stage of bail.
    • The alleged financial transactions between the applicant and co-accused were not supported by any material demonstrating that these were related to narcotics dealing. Mere monetary transfers were held insufficient, at this stage, to establish complicity in the NDPS offence.
  2. Prolonged Custody and Delay in Trial:
    • The applicant had been in custody since August 2023, and by December 2025 only charges had been framed.
    • In light of Supreme Court decisions, especially Mohd. Muslim v. State (NCT of Delhi), Rabi Prakash v. State of Odisha, and Man Mandal & Another v. State of West Bengal, the High Court held that grant of bail on the ground of undue delay in trial is not fettered by Section 37 NDPS Act.
    • Prolonged incarceration was held to militate against Article 21, and “conditional liberty” was said to override the statutory embargo in such circumstances.
  3. Limited Weight of Prior NDPS Conviction:
    • The prior conviction involved only a small quantity (20g of heroin), and the applicant’s sentence had been suspended pending appeal.
    • The Court held that while prior involvement is relevant, in the present circumstances—where the applicant had made out a prima facie case for bail and had already spent significant time in custody—it could not, by itself, be decisive against granting bail.
  4. Imposition of Safeguarding Conditions:
    • The applicant was ordered to be released on a personal bond of ₹25,000 with two sureties of like amount, subject to several conditions: non-tampering with evidence or witnesses, not leaving India without intimation, regular appearance before the trial court, and sharing/maintaining his address and mobile number with the investigating officer (IO) / SHO.
    • The State was given liberty to seek cancellation of bail upon any fresh FIR, DD entry or complaint against the applicant.

The Court expressly clarified that its observations are limited to the bail stage and should not influence the merits of the trial.

IV. Issues and Legal Questions

The judgment effectively confronted the following key issues:
  1. Section 37 NDPS and Bail in Commercial Quantity Cases:
    Can an accused in a commercial quantity NDPS case be granted bail when Section 37 imposes stringent twin conditions, especially where there are evidentiary doubts and delay in trial?
  2. Effect of Evidentiary Weaknesses at the Bail Stage:
    To what extent can discrepancies between the field testing kit result and the FSL report, absence of independent witnesses, and lack of photography/videography influence the “reasonable grounds” assessment under Section 37?
  3. Role of Prolonged Incarceration and Article 21:
    Does prolonged custody and delayed trial permit the Court to grant bail notwithstanding the statutory bar under Section 37, and how are Supreme Court precedents on this point to be applied?
  4. Relevance of Prior NDPS Convictions:
    How should a prior NDPS conviction, where sentence has been suspended pending appeal, weigh in the balance when determining bail in a fresh NDPS case?
  5. Monetary Transactions with Co-Accused:
    Are unexplained bank transactions with co-accused, by themselves, enough to constitute “reasonable grounds” to believe the accused is involved in narcotics trafficking?

V. Precedents Cited and Their Influence

1. Bantu v. State Govt of NCT of Delhi, 2024 DHC 5006

In Bantu, the Delhi High Court had examined the effect of:

  • non-joining of independent (public) witnesses during a planned raid; and
  • absence of photography or videography of the recovery proceedings,

particularly in circumstances where the investigating agency had adequate time to prepare.

Justice Mahajan, summarising Bantu, held:

“while the testimony of independent witness is sufficient to secure conviction if the same inspires confidence during the trial, however, lack of independent witnesses in certain cases can cast a doubt as to the credibility of the prosecution's case. It was held that when the Investigating Agency had sufficient time to prepare before the raid was conducted, not finding the public witness and lack of photography and videography in today's time casts a doubt to the credibility of the evidence.”

In Sahil Sharma, this precedent was pivotal in treating the unexplained non-joinder of independent witnesses and lack of photo/video evidence as a factor that, even if not fatal at trial, tilts the balance in favour of bail when assessing the prima facie strength of the prosecution case.

2. Mohd. Muslim v. State (NCT of Delhi, 2023 SCC OnLine SC 352

The Supreme Court in Mohd. Muslim foregrounded the relationship between Section 37 NDPS Act, Section 436A of the Code of Criminal Procedure (CrPC), and Article 21 of the Constitution. It held that:

  • The imperative of Section 436A (which provides for release on bail where an undertrial has spent substantial time in custody, up to half of maximum sentence, with some exceptions) extends to NDPS cases as well.
  • Grant of bail on grounds of undue delay in trial is not fettered by Section 37 of the NDPS Act.
  • There is a profound danger in “prisonisation” – the psychological and social transformation of individuals through extended incarceration – and in the conditions of overcrowded prisons.

The Delhi High Court quoted the following passage:

“Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too...”

and further reproduced the Supreme Court’s observations on:

  • prison overcrowding,
  • the degrading impact of long incarceration on undertrials, and
  • the risk of undertrials being drawn deeper into criminal subcultures while in custody.

In Sahil Sharma, this precedent forms the backbone of the Court’s holding that, despite Section 37, bail may be granted solely on account of undue delay in trial and prolonged incarceration.

3. Man Mandal & Another v. State of West Bengal, SLP (Crl.) No. 8656/2023

Although the detailed reasoning of this Supreme Court order is not reproduced, the Delhi High Court notes that:

  • The Supreme Court granted bail to the accused in an NDPS case where the accused had been in custody for almost two years, and
  • the trial was likely to take considerable time.

The case is used illustratively to emphasise the emerging approach of the Supreme Court: where undertrials in NDPS cases remain incarcerated for extended periods and the trial is nowhere near completion, constitutional concerns regarding personal liberty warrant bail.

4. Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109

The Supreme Court in Rabi Prakash further clarified the interplay between Section 37 and prolonged incarceration. The Delhi High Court quotes the following crucial passage:

“So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

This is an important refinement: it recognises that when custody is excessively long, a court need not be able to positively form the opinion that the accused is “not guilty” in order to grant bail. Instead, Article 21 considerations and the concept of “conditional liberty” can outweigh Section 37’s second condition.

In Sahil Sharma, Justice Mahajan invokes this principle to stress that Section 37 cannot be interpreted to mandate effectively indefinite undertrial detention, and that in cases of prolonged incarceration, constitutional liberty is paramount.

5. Reference to Satender Kumar Antil and Section 436A CrPC

While Satender Kumar Antil v. CBI is not quoted in detail, it is referred to in Mohd. Muslim as part of the jurisprudence regarding:

  • implementation of Section 436A CrPC,
  • categories of offences and modalities of bail, and
  • the necessity to reduce undertrial incarceration.

In the present judgment, the Delhi High Court relies on this broader backdrop to treat Section 436A and Article 21 as constitutional and statutory safeguards that must meaningfully influence bail decisions even under special statutes like the NDPS Act.

VI. Court’s Legal Reasoning

1. General Principles of Bail and Section 37 NDPS

At the outset (para 12), the Court restated general bail considerations:

  • existence of a prima facie case or reasonable grounds to believe the accused committed the offence,
  • circumstances peculiar to the accused,
  • likelihood of repetition of offence,
  • nature and gravity of accusation,
  • severity of punishment in the event of conviction,
  • danger of abscondence, and
  • reasonable apprehension of witness intimidation or evidence tampering.

Then (para 13), the Court emphasised that in NDPS cases involving commercial quantity, Section 37 imposes additional stringent conditions:

“No person accused of an offence ... involving commercial quantity shall be released on bail ... unless ... the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

These are the so-called twin conditions—(i) reasonable grounds to believe the accused is not guilty, and (ii) reasonable grounds to believe he is not likely to commit another offence. Section 37 further declares that the NDPS bail limitations are in addition to those under CrPC or any other law.

The central question, therefore, becomes: how to apply these conditions in light of evidentiary doubts, prolonged incarceration, and evolving Supreme Court jurisprudence?

2. Evidentiary Infirmities and the “Reasonable Grounds” Assessment

(a) Discrepancy Between Field Testing Kit and FSL Report

One of the applicant’s primary arguments concerned a discrepancy:

  • The substance recovered from his pocket tested positive for MDMA on the field testing kit.
  • However, the FSL report indicated the substance was methamphetamine.

The prosecution explained, and the Trial Court had accepted, that field kits contain “limited samples” and cannot always detect “highly synthesised salts”. However, Justice Mahajan noted (para 16):

“While the veracity of the prosecution's explanation in this regard can only be tested during the course of trial, at this stage, in the absence of any supporting material to lend credence to the aforesaid assertion, the argument of the prosecution cannot be taken on a demurrer and the benefit of the ex facie discrepancy has to be accorded to the applicant, especially when the prosecution's case against the applicant is essentially helmed on the recoveries effected from him.”

In other words:

  • At the bail stage, the Court need not conclusively resolve expert questions about the limitations of field kits.
  • In the face of an apparent contradiction between two official testing stages, and in the absence of material explaining this contradiction, the benefit of doubt must lean towards the accused.

However, the Court also observed:

“However, apart from MDMA, other contrabands have also been allegedly recovered from the possession of applicant and, therefore, the applicant cannot be admitted on bail solely for the said reason.”

Thus, the inconsistency was an important, but not exclusive, factor.

(b) Non-Joining of Independent Witnesses and Lack of Photography/Videography

The applicant argued that:

  • The alleged recovery occurred in a public place at around 12:40 a.m.
  • Despite having received the secret information around 11:30 p.m. — thus having time to organise — the police:
    • did not secure any independent public witnesses to the search and seizure, and
    • did not conduct photography or videography of the recovery.

The prosecution’s explanation that some public persons refused to join the raid was noted by the Court as “mechanical” and unspecific, and crucially, it suggested that it was not a case where no persons were available in the area.

Justice Mahajan clarified the law in two steps:

  1. Official witnesses alone can suffice for conviction:
    “Reliance on the testimonies of official witnesses is sufficient to secure conviction once it is established that the police witnesses have no animosity against the accused person so as to falsely implicate him. The testimonies of the official witnesses cannot be disregarded merely on account of them being police officials.”
  2. Yet, the absence of independent witnesses and corroborative material can cast doubt:
    “However, it cannot be denied that the lack of independent witnesses and photography or videography, in some circumstances, casts a shadow over the case of the prosecution.”
    Relying on Bantu, the Court held that where the police had time to prepare and the raid took place in a public area, the absence of independent witnesses and visual recording in “today’s time” may reasonably affect the assessment of credibility.

Conclusively, at the bail stage (para 21):

“While the veracity of the explanation of the prosecution ... will be tested during the course of the trial, at this stage, the benefit of the lack of corroboration cannot be denied to the applicant.”

Thus, non-joining of independent witnesses and absence of visual documentation, though not conclusive, operate as a factor diminishing the apparent robustness of the prosecution’s case for Section 37 purposes.

(c) Financial Transactions with Co-Accused

The prosecution described the applicant as a kingpin and referred to “bank transactions” between him and some co-accused. The Court was categorical (para 17):

“At this juncture, in the opinion of this Court, in the absence of any cogent evidence which establishes that the transactions were for the purpose of dealing in the contrabands, mere monetary transactions do not establish the applicant's complicity in the commission of the offence.”

This is an important clarification. It rejects the idea that:

  • mere existence of financial links with persons involved in narcotics cases automatically implies criminal complicity; and
  • such transactions, without contextual evidence, are insufficient to deny bail under Section 37.

For future NDPS cases, this signals judicial insistence on a nexus between financial flows and the alleged narcotics activity before such transactions are treated as incriminating at the bail stage.

3. Prolonged Incarceration, Delay in Trial, and Article 21

A central plank in the Court’s reasoning is the length of custody and the slow pace of trial. The applicant had:

  • been in custody since 22.08.2023; and
  • by 03.12.2025, only charges had been framed, with the first evidence date set for 28.03.2026.

The Court expressly held (para 22) that:

“grant of bail on account of undue delay in trial cannot be said to be fettered by the embargo under Section 37 of the NDPS Act.”

Relying on Mohd. Muslim, the Court emphasised:

  • that Section 436A CrPC is applicable even to NDPS offences;
  • that “laws which impose stringent conditions for grant of bail” may be necessary, yet if trials are not concluded in time, the resulting injustice is “immeasurable”;
  • that prison overcrowding and “prisonisation” pose serious threats to the dignity and future of undertrials; and
  • that courts must be sensitive to the irreversible loss inflicted by long undertrial incarceration when acquittal remains a real possibility.

Following Rabi Prakash, the Court recognised that where custody is prolonged:

  • the court may not be able to form a positive opinion that the accused is “not guilty”;
  • nevertheless, the “most precious fundamental right guaranteed under Article 21” demands that conditional liberty override the Section 37 embargo.

Justice Mahajan distilled the object of pre-trial detention (para 25):

“The object of jail is to secure the appearance of the accused during the trial. The object is neither punitive nor preventive and the deprivation of liberty has been considered as a punishment.”

He noted that with the trial not likely to conclude in the near future, “the applicant cannot be made to spend the entire period of trial in custody especially when speedy trial does not seem to be a possibility.”

This reasoning is critical: it refuses to let Section 37 be used as a vehicle for indefinite pre-trial punishment. Instead, Section 37 is read harmoniously with Article 21 and Section 436A.

4. Effect of Prior NDPS Conviction

The State heavily relied on the applicant’s prior NDPS conviction in Haryana. However, the Court analysed the context:

  • The recovered substance in that case was only 20g of heroin (small quantity).
  • The conviction is currently under appeal before the Punjab and Haryana High Court.
  • The sentence in that case stands suspended, and the High Court there was itself aware of the pending Delhi case while suspending sentence.

In this light, Justice Mahajan held (para 27):

“considering that the applicant has already spent a significant time in custody and he has been able to make out a prima facie case for grant of bail on merits, in the opinion of this Court, his prior involvement cannot come in the way of grant of liberty to the applicant.”

Thus:

  • Prior involvement is relevant but not decisive.
  • Particularly where that prior case itself involves small quantity and is under appellate scrutiny with suspended sentence, it cannot automatically outweigh current evidentiary weaknesses and prolonged custody.

The judgment therefore moderates the tendency to label accused as “habitual offenders” and use that label, by itself, to deny bail in fresh NDPS prosecutions.

5. Balancing Liberty with the Need to Protect the Process

While granting bail, the Court was mindful of concerns about re-offending or tampering with evidence. Hence, it imposed tailored conditions:

  • Non-interference with witnesses and evidence.
  • Restrictions on international travel without intimation.
  • Regular appearance before the Trial Court.
  • Disclosure and non-change of residence without intimation.
  • Constant availability on a specified mobile number.

Additionally, the Court reserved the State’s right to seek cancellation of bail if fresh FIRs, DD entries, or complaints arise.

This reflects an approach of “conditional liberty”: recognising Article 21 rights but balancing them with practical safeguards for the integrity of the trial and public interest.

VII. Complex Concepts Simplified

1. What is Section 37 of the NDPS Act?

Section 37:

  • Declares NDPS offences as cognizable (police can arrest without warrant) and non-bailable.
  • For certain serious offences—including those involving commercial quantity—bail can be granted only if:
    1. The Public Prosecutor is given an opportunity to oppose bail; and
    2. When opposed, the court is satisfied that:
      • there are reasonable grounds for believing that the accused is not guilty of the offence; and
      • the accused is not likely to commit any offence while on bail.

This makes NDPS bail much more restrictive than ordinary bail under the CrPC. However, the Supreme Court and High Courts have clarified that Section 37 must be read in harmony with Article 21 (right to life and personal liberty) and Section 436A CrPC.

2. What is “Commercial Quantity”?

Under the NDPS Act, the Government has notified specific threshold quantities for various substances.

  • Small quantity: Below a specified lower threshold.
  • Commercial quantity: Above a specified higher threshold.
  • Anything in between is neither small nor commercial (often termed “intermediate”).

Commercial quantity offences attract:

  • higher minimum sentences (often 10 years rigorous imprisonment and fine), and
  • the stringent bail bar of Section 37(1)(b).

In Sahil Sharma, the combined alleged recoveries of charas, ganja and synthetic drugs from the applicant’s person, car, residence, and related seizures clearly placed the case in the commercial quantity category, triggering Section 37.

3. Field Testing Kit vs FSL Report

In NDPS investigations:

  • A field testing kit is used by police at the seizure site to tentatively identify whether a substance is a narcotic/psychotropic drug. It is a preliminary, on-the-spot test.
  • A Forensic Science Laboratory (FSL) test is a detailed chemical analysis by qualified experts in a laboratory, providing the authoritative identification of the substance and sometimes its purity.

While field tests aid immediate procedure, the FSL report is usually treated as the more reliable scientific evidence. A clear, unexplained contradiction between the two—such as an initial result indicating MDMA and an FSL report indicating methamphetamine— can raise questions about the integrity of sampling, testing, or labelling processes.

At the bail stage, courts may treat such a contradiction as an evidentiary weakness, as done in this case.

4. Independent Witnesses and Photography/Videography in NDPS Raids

In search and seizure operations, especially under stringent laws like NDPS:

  • Police are expected, where practicable, to associate independent witnesses from the public, to lend credibility to their account.
  • With technological advances, photography and videography of raids and recoveries are increasingly seen as good practice, though not yet universally mandatory.

The law is clear that:

  • Conviction can be based solely on credible, consistent official witness testimony when no animus or motive to falsely implicate is shown.
  • However, unexplained failure to join any independent witnesses or to record the raid may weaken the prosecution’s credibility, especially where there was time and opportunity to do so.

In Sahil Sharma, the Court did not treat these omissions as fatal for trial, but recognised them as factors favouring bail, consistent with Bantu.

5. Section 436A CrPC and Prolonged Undertrial Detention

Section 436A CrPC provides that:

  • An undertrial who has spent half of the maximum sentence prescribed for the offence in custody (with some exceptions) is entitled to be considered for release on bail.
  • It aims to prevent indefinite detention of undertrials awaiting trial, especially where delays are systemic or not attributable to the accused.

Although NDPS offences are serious, the Supreme Court has clarified that Section 436A’s imperative applies to them as well, and that even before the Section 436A threshold, prolonged custody can justify bail on Article 21 grounds, despite Section 37.

6. Suspension of Sentence Pending Appeal

When a person is convicted and sentenced by a trial court, and then appeals:

  • The appellate court may stay execution of the sentence and release the person on bail (often termed “suspension of sentence”).
  • This does not erase the conviction but acknowledges that the appeal may succeed and that immediate imprisonment might cause irreparable harm.

In the present case, the prior NDPS conviction of the applicant in Haryana had its sentence suspended by the Punjab and Haryana High Court. The Delhi High Court treated this as meaningfully softening the weight of that conviction when assessing risk and character in the present bail application.

VIII. Impact and Future Implications

1. Strengthening the Constitutional Check on Section 37 NDPS

This judgment continues and consolidates a crucial trend:

  • Bail under the NDPS Act is not an absolute impossibility in commercial quantity cases.
  • Section 37 must be interpreted in the light of Article 21 and Section 436A CrPC.
  • Prolonged pre-trial incarceration and systemic trial delay can, by themselves, justify bail, even if the court cannot positively conclude at this stage that the accused is “not guilty”.

Trial courts and High Courts, particularly within Delhi’s jurisdiction, are likely to rely on Sahil Sharma as an affirmation that:

  • they may grant bail in NDPS commercial quantity cases after significant custody and delay;
  • they can do so consistent with Supreme Court authority, without being seen as diluting Section 37, but rather harmonising it with constitutional protections.

2. Investigative Standards: Independent Witnesses and Visual Documentation

By relying on Bantu and applying its reasoning, the judgment sends a strong signal to investigating agencies:

  • Where there is time to organise a raid, the police must make real efforts to associate independent public witnesses.
  • In an era where videography is accessible, courts increasingly expect photographic or video evidence of critical stages like search, seizure, and sealing, especially in high-stakes NDPS matters.
  • Failure to do so will not automatically nullify prosecutions, but it will reduce the robustness of the prosecution’s prima facie case, making bail more likely.

This is likely to influence training, internal protocols, and standard operating procedures of the Crime Branch and Anti-Narcotics Task Forces.

3. Evidentiary Value of Financial Transactions

The Court’s scepticism towards mere bank transactions as proof of narcotics activity at the bail stage is important for NDPS cases that increasingly rely on digital and financial trails.

  • Investigations will need to connect dots between money movements and specific narcotics transactions—e.g., through chats, messages, ledger entries, or co-accused statements corroborated by objective data.
  • Unexplained but lawful-appearing financial flows (e.g., between acquaintances, business associates, or family) will not, without more, operate as strong incriminating factors for refusing bail.

4. Treatment of “Habitual” NDPS Accused

The judgment tempers an often reflexive inclination to treat prior NDPS offenders as categorically ineligible for bail. It clarifies that:

  • The nature of the past case (e.g., small vs. commercial quantity) matters.
  • The status of appeal and whether sentence is suspended matters.
  • Prior convictions are a factor in risk assessment, but not a trump card nullifying other bailout factors like evidentiary doubt and long custody.

This more nuanced approach may influence how trial courts assess and record the role of prior antecedents in future NDPS bail orders.

5. Reinforcing the Importance of Speedy Trial in Special Statutes

By vividly invoking Supreme Court observations on overcrowded prisons and “prisonisation”, the judgment reinforces the judiciary’s duty to:

  • monitor and question delays in NDPS trials, and
  • avoid converting rigorous but temporary pre-trial detention into a surrogate punishment.

In practical terms:

  • Trial courts handling NDPS matters may feel greater pressure to expedite trials, given that prolonged delay will increasingly translate into bail.
  • Prosecution agencies may correspondingly improve case management, witness scheduling, and forensic timelines to avoid such delays.

IX. Conclusion

The Delhi High Court’s decision in Sahil Sharma Alias Maxx v. State Govt of NCT of Delhi is a substantive addition to NDPS bail jurisprudence. It synthesises:

  • the statutory rigour of Section 37 NDPS Act,
  • the constitutional mandate of Article 21,
  • the statutory safeguard of Section 436A CrPC, and
  • evolving Supreme Court precedents on prolonged undertrial incarceration,

into a coherent framework that:

  1. Recognises that bail can be granted in NDPS commercial quantity cases when:
    • there are evident weaknesses or doubts in the prosecution case (e.g., inconsistent forensic indications, lack of independent corroboration, unlinked financial transactions); and/or
    • the accused has undergone significant pre-trial incarceration and the trial is not likely to conclude expeditiously.
  2. Clarifies that Section 37’s embargo does not absolutely bar bail where:
    • prolonged detention violates Article 21, and
    • “conditional liberty must override” statutory restrictions, as held in Rabi Prakash and Mohd. Muslim.
  3. Emphasises that:
    • the absence of independent witnesses and visual documentation in planned raids can weaken the prosecution’s case at the bail stage, though official testimony can still ground conviction if credible at trial; and
    • mere monetary links with co-accused do not, by themselves, satisfy the “reasonable grounds” test under Section 37.
  4. Adopts a nuanced attitude towards prior NDPS convictions, refusing to allow them to automatically preclude bail where appeals are pending, sentences are suspended, and the current case shows both evidentiary doubt and extensive custody.

Overall, the ruling signals a maturing of NDPS bail jurisprudence: it preserves the seriousness of drug offences and the heightened standards of Section 37, but refuses to let those standards eclipse fundamental constitutional guarantees. It underscores that the object of pre-trial detention is to secure the accused’s presence, not to inflict premature punishment. Where the machinery of justice moves slowly, courts must ensure that the price is not paid in unjust deprivation of liberty.

Case Details

Year: 2025
Court: Delhi High Court

Judge(s)

Justice Amit Mahajan

Advocates

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