“The Marginal-Excess Doctrine” – Delhi High Court Softens the Rigours of Section 37 NDPS Act for Quantities Only Slightly Above the Commercial Threshold

1. Introduction

In Vinay Sharma v. State Govt. of NCT of Delhi (2025 DHC 6358), the Delhi High Court confronted a bail request under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) where the recovery—21.508 kg of ganja—was just 1.508 kg over the statutory “commercial quantity” of 20 kg. The petitioner had spent nearly three years in custody with the trial crawling at a glacial pace. Justice Arun Monga seized the opportunity to crystallise a growing line of Delhi bail decisions into a clearer principle: when the seized contraband is marginally over the commercial threshold, the rigid embargo of Section 37 can be tempered. This judgment, therefore, forges what may be called the “Marginal-Excess Doctrine”.

Key actors:

• Petitioner: Vinay Sharma, alleged supplier of ganja.
• Respondent: State Government of NCT of Delhi.
• Bench: Hon’ble Mr. Justice Arun Monga.

Central issues:

• Whether Section 37’s stringent twin tests for bail remain inflexible when the quantity recovered marginally surpasses the commercial limit.
• What weight should prolonged pre-trial incarceration and sluggish prosecution carry under Article 21’s guarantee of personal liberty?
• Does absence of videography or independent witnesses erode the prosecution case sufficiently to satisfy Section 37(1)(b)(ii)?

2. Summary of the Judgment

The Court granted regular bail subject to standard conditions, anchoring its conclusion on three cumulative considerations:

1. Marginal excess: The quantity was only 7.54% above the commercial threshold. Such slender excess, the Court held, warrants a “more nuanced” application of Section 37.
2. Delay in trial: Only 3 of 18 witnesses had been examined in nearly three years, none of which was attributable to the accused.
3. Clean antecedents & low risk: No prior criminal record, no evidence of witness intimidation, and the seized material was safely in custody.

Consequently, the Court was prima facie satisfied that:

• There were reasonable grounds for believing the accused was not guilty of the charges, and
• He was unlikely to commit any offence while on bail

—thereby fulfilling Section 37(1)(b)’s twin conditions, even in a commercial-quantity case.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Ashok Kumar @ Lala v. State (2024 SCC OnLine Del 6923)

Introduced the concept of scrutinising “border-line recoveries”. The Court held that a 1.1 kg charas recovery (threshold = 1 kg) required trial scrutiny before treating it as commercial. Justice Monga extends this idea from charas to ganja.

2. Gurprabh Singh @ Prince v. State of Punjab (P&H High Court, 2025)

Granted bail for 261 g Tramadol where the limit is 250 g, emphasising first-time offender status. Delhi High Court imported this proportionality lens.

3. Bantu v. State (2024 SCC OnLine Del 4671) & Sanjay v. State (2023 SCC OnLine Del 4487)

Stressed on mandatory videography and independent witnesses in NDPS seizures. Here, absence of both weakened the prosecution’s prima facie case.

4. Pascal Ezeigbo @ Prince v. State (2025)

Lack of independent corroboration satisfied Section 37(1)(b)(ii), paving the way for bail. Justice Monga found the factual similarities compelling.

5. Tarkeshwar Singh v. State & Najir Hussain v. State (2025 Delhi)

Bail granted solely on prolonged incarceration (over 2 years). These cases armed the petitioner with a constitutional argument around speedy trial.

6. Man Mandal v. State of West Bengal (2023 SCC OnLine SC 1868)

Supreme Court precedent underscoring that protracted detention with no early conclusion of trial is a valid ground for bail in NDPS matters.

3.2 Legal Reasoning

Justice Monga’s reasoning may be distilled into four interacting layers:

1. Proportionality & “Marginal-Excess Doctrine”: The Court, while not explicitly coining the term, effectively held that a slight excess over the commercial quantity should not trigger Section 37’s embargo mechanistically. This approach blends statutory interpretation with constitutional proportionality.
2. Article 21 & right to speedy trial: echoing Hussainara Khatoon and Maneka Gandhi, the Court found that three years of under-trial incarceration without meaningful trial progress militated in favour of liberty.
3. Evidentiary infirmities: Lack of videography, absence of independent witnesses, and disputed compliance with Section 50 collectively produced “reasonable doubt” at a prima facie stage, satisfying Section 37(1)(b)(ii).
4. Risk assessment: Clean record + seized contraband in custody + mostly official witnesses = negligible risk of tampering or recidivism; thus the second limb of Section 37(1)(b) was met.

3.3 Impact and Future Trajectory

• Precedential value: Although a single-judge order, it consolidates scattered Delhi precedents into a cohesive doctrine. Expect counsel to invoke “marginal-excess” in future bail applications where the contraband is just above the threshold.
• Shift in prosecutorial burden: Prosecutors will need to emphasise aggravating factors beyond the mere weight of contraband—e.g., organised syndicate links—to resist bail in marginal-excess cases.
• Videography becoming a norm: Reiterated insistence on electronic recording will likely compel investigative agencies to deploy body-cams and mobile recordings to stave off bail.
• Speedy-trial litigation: Courts may become less tolerant of prosecution delays, especially where Section 37 is invoked, balancing systemic delays with personal liberty.
• Legislative conversation: The judgment might nudge Parliament or the Central Government to reconsider rigid thresholds or to issue guidelines about “tolerance bands” around commercial quantities.

4. Complex Concepts Simplified

• Commercial Quantity: Statutorily fixed weight which, if exceeded, triggers harsher punishments and Section 37 bail embargo. For ganja, 20 kg.
• Section 37 Twin Conditions: Bail in commercial-quantity NDPS cases can be granted only if (i) Court is satisfied there are reasonable grounds to believe the accused is not guilty, and (ii) the accused is unlikely to commit any offence while on bail.
• Conscious Possession: Knowledge combined with control over the contraband. Dropping bags while fleeing does not per se negate conscious possession; but flimsy seizure proofs can.
• Videography Mandate: The NCB’s Field Officers’ Handbook advises recording the search to ensure transparency and evidentiary reliability.
• Marginal-Excess Doctrine (coined): Judicial relaxation of Section 37 where the seized quantity only slightly exceeds the commercial threshold, subject to other bail factors.

5. Conclusion

Vinay Sharma v. State cements an emergent theme in NDPS bail jurisprudence: quantity alone is not destiny. Where the contraband tips over the statutory scale by a razor-thin margin, and the prosecution drags its feet, constitutional liberty resurfaces as the decisive factor. Justice Arun Monga’s opinion offers a pragmatic roadmap—balancing statutory severity with proportionality, procedural fidelity, and the fundamental right to a speedy trial. In doing so, the Delhi High Court has carved out the “Marginal-Excess Doctrine,” likely to reverberate through future bail hearings and perhaps prompt systemic introspection regarding the investigation and prosecution of NDPS offences.