Drug Possession Case in India: NDPS Act Explained

By Advocate Ganta Surya Kiran | 19 Law Chambers, Visakhapatnam | Criminal Law

Drug possession cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are among the most serious criminal matters in India carrying punishments from 1 year to life imprisonment depending on the quantity involved. Furthermore, NDPS cases have special bail provisions that make obtaining bail significantly harder than regular criminal cases. However, knowing the law clearly specifically the distinction between small quantity, intermediate quantity, and commercial quantity is absolutely essential for anyone facing a drug case. Advocate Ganta Surya Kiran at 19 Law Chambers represents clients in NDPS matters across Andhra Pradesh.

The Three Quantities That Determine Everything

The NDPS Act punishes drug offences based on the quantity of the narcotic substance involved. Consequently, the quantity seized is the single most critical factor in every NDPS case. Specifically:

Small Quantity: The lowest category below the threshold specified for each substance in the NDPS Rules. Specifically, small quantity for cannabis is 1 kg, for heroin it is 5 grams, and different limits apply to different substances. Punishment: rigorous imprisonment up to 1 year, fine up to Rs 10,000, or both. Furthermore, for small quantity offences courts have more flexibility in sentencing and bail is relatively easier to obtain.

Intermediate Quantity (Between Small and Commercial): Falls between small quantity and commercial quantity. Punishment: rigorous imprisonment up to 10 years and fine up to Rs 1 lakh. Moreover, bail for intermediate quantity cases requires satisfying higher judicial scrutiny.

Commercial Quantity: The most serious category above the prescribed commercial quantity threshold. Specifically, for heroin more than 250 grams is commercial quantity. Punishment: rigorous imprisonment minimum 10 years, up to 20 years, and fine minimum Rs 1 lakh up to Rs 2 lakh. Furthermore, courts can sentence up to 30 years for certain aggravated offences. Importantly, the NDPS Act specifically provides for the death penalty for repeat commercial quantity offenders in certain circumstances though this is rarely applied.

The Bail Problem in NDPS Cases — Section 37

Section 37 of the NDPS Act creates a special bail restriction that makes NDPS cases fundamentally different from regular criminal cases. Specifically: for intermediate and commercial quantity cases the court cannot grant bail unless it is satisfied that there are reasonable grounds for believing the accused is not guilty AND that the accused will not commit any offence while on bail. Consequently, this reverse burden of proof makes bail extremely difficult in serious NDPS cases.

Furthermore, the Public Prosecutor must be given an opportunity to oppose bail  and even if the prosecution does not appear courts cannot automatically grant bail without applying the Section 37 mind. Consequently, engaging an experienced advocate who understands NDPS bail jurisprudence is absolutely critical. Read: Anticipatory Bail India.

Rights of the Accused in NDPS Cases

Despite the severity of NDPS offences, accused persons retain important legal rights. Specifically:

Right to Proper Sampling: The seized substance must be sampled correctly in the presence of the accused, with samples sent to the Chemical Examiner as per established protocols. Furthermore, improper sampling procedure is a strong defence that can lead to acquittal. Consequently, challenge the sampling procedure immediately if any irregularity occurred.

Right to Chemical Analysis: The prosecution must prove through a Chemical Examiner’s report that the seized substance is indeed the narcotic claimed. Moreover, delays in sending samples for analysis or procedural failures in the chain of custody are valid grounds for challenging the prosecution’s case.

Right Against Illegal Search: Police must follow specific search procedures under Section 42 and 43 of the NDPS Act including giving prior information to a senior officer, conducting searches in the presence of gazetted officers or magistrates in certain cases, and issuing search warrants where required. Consequently, an illegal search makes the evidence obtained through that search legally challengeable.

Right to Know Charges: Police must inform you of the specific offence alleged and the quantity of substance found. Furthermore, you have the right to legal representation from the moment of arrest. Read: Police Arrest Rights India.

Common Defences in NDPS Cases

Experienced criminal advocates use several defences in NDPS cases. Specifically: procedural violations in search and seizure under Sections 42 and 43 NDPS Act, improper sampling of the seized substance, breaks in the chain of custody from seizure to court, the Chemical Examiner’s report not clearly identifying the substance, the substance being below the small quantity threshold, planting of evidence by police supported by alibi and witness evidence, and the accused having valid medical prescription for the substance (for certain psychotropic substances).

Frequently Asked Questions

Q: Is ganja (cannabis) possession illegal in India?
Yes — cannabis in any form is a narcotic substance under the NDPS Act Schedule. Specifically, possession of ganja below 1 kg is small quantity punishable with up to 1 year imprisonment. Moreover, possession above 1 kg is intermediate or commercial quantity with much higher punishment. Consequently, even small amounts of ganja can result in criminal prosecution.

Q: Can I get bail if I am arrested for drug possession in Andhra Pradesh?
For small quantity offences yes, bail is obtainable from the Magistrate or Sessions Court with proper advocacy. For intermediate and commercial quantity offences Section 37 makes bail very difficult. Moreover, applications for bail must specifically address the Section 37 conditions which requires experienced NDPS legal representation. Contact us immediately: +91 99495 92127.

Q: What if I was not aware the bag I was carrying had drugs in it?
Lack of knowledge is a valid defence but it must be proved by the accused. Specifically, producing evidence that the bag belonged to someone else, that you were given the bag by another person, and that you had no reason to suspect its contents — all strengthen this defence. Consequently, preserve all communication records and identify all witnesses immediately. Free legal aid: NALSA — nalsa.gov.in.

Also read: FIR Quashing Petition High Court AP | Bail Application Process India | Best Criminal Lawyers Vizag

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