Possession of suspected heroin in a quantity below 5 grams is considered a bailable offence under the NDPS Act, 1985, based on judicial precedents of the Gauhati High Court.

ORDER

Heard Mr. B. Chowdhury, learned counsel appearing for the accused applicant. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State of Assam.

2. This is an application under Section 483 of BNSS, 2023 read with Section 37 of NDPS Act, 1985 , praying for regular bail to the accused applicant in connection with Mukalmua Police Station Case No. 257/2025, registered under Section 21(a)/22(b) of NDPS Act, 1985 .

3. An FIR was lodged on 04.12.2025 with the allegation that on receipt of certain secret information, on search of the body of the accused applicant, certain amount of drugs concealed in cigarette packet was recovered from him, later, when weighted, the amount came to be 3.92 grams of suspected Heroin.

4. On receipt of the FIR, a case is registered under Mukalmua Police Station Case No. 257/2025 under the aforementioned Sections.

5. The learned counsel appearing for the accused applicant submits that the two co-ordinate Benches of this Court have already held that an offence under Section 21(a) of the NDPS Act, 1985 , is a bailable offence. He further submits that the quantity of the recovered substance in the present case is only 3.92 grams, which is less than 5 grams. He further submits that although Section 21(b) is mentioned in the FIR, the records including the forwarding reports as well as the seizure list clearly indicate that the recovered amount is 3.92 grams.

6. In view of the aforesaid, it is submitted that Section 21(b) of the NDPS Act is not applicable in the instant case. Even if Section 21(a) is considered applicable, the offence remains bailable. Therefore, the accused–applicant should be granted bail in the present case.

7. Mr. P. Borthakur, learned Additional Public Prosecutor for the State of Assam, submits that, from the records, it is evident that the quantity recovered is 3.92 grams.

8. Taking into account, the quantity that has been seized which is below 5 grams of suspected Heroin, the order dated 13.02.2023 passed in Bail Application No. 472/2023 by a Co-ordinate Bench of this Court, wherein, it has been specifically held that “3.58 grams” is bailable offence and since in the instant case, it is below 5 grams, being 3.92 grams in the considered opinion of this Court the accused applicant should be released on bail.

9. Accordingly, the accused–applicant shall be released forthwith on bail upon furnishing a bail bond of Rs. 25,000/- (Rupees Twenty-Five Thousand only) with one surety of the like amount to the satisfaction of the learned Special Judge (NDPS) Nalbari, subject to the following conditions:

(i) The accused applicant shall cooperate with the investigation and make himself available as and when required.

(ii) The accused applicant shall not temper or hamper with the investigation of the case.

(iii) The accused applicant shall not indulge in any such offences;

10. In view of the aforesaid directions, the instant bail application is disposed of as allowed.