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New Delhi: On March 19, a Supreme Court bench of Justices Ahsanuddin Amanullah and R. Mahadevan upheld the conviction of two young foreign nationals under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, but invoked Article 142 of the Constitution to reduce their sentence to the period already undergone.

Six days later, on March 25, the same bench allowed a criminal appeal by the Union of India and set aside a Gauhati high court order granting bail to a woman accused of being part of a heroin cartel.

The first order, in Ayoouluwa David Adebakin & Anr. v. State (SLP (Crl) No. 14141/2025), deployed the extraordinary constitutional jurisdiction to temper a sentence with compassion. The second order, in Union of India v. Themboi @ Themboi Singson (Criminal Appeal No. 1616/2026), exercised ordinary appellate jurisdiction to enforce the statutory rigour of Section 37 of the NDPS Act.

The two cases occupied different procedural stages. One was a post-conviction challenge to sentence; the other, a pre-trial bail cancellation. Yet they concern the same statute and the same underlying question of personal liberty. Read together, they offer a compact illustration of the competing demands that NDPS adjudication places on the judiciary.

Students, ganja, and Article 142

The two appellants in Adebakin, aged 22 and 26, were students pursuing academic courses in India. They were convicted for possession of four and three kilograms of dry ganja respectively, under Section 8(c) read with Section 20(b)(ii)(B) of the NDPS Act, and for conspiracy under Section 29(1). The quantities fell between the small quantity threshold of one kilogram and the commercial quantity threshold of 20 kilograms. The trial court sentenced each of them to seven years of rigorous imprisonment and a fine of Rs 50,000 for each offence, with both sentences to run concurrently. The Madras high court dismissed their appeal on  August 2,  2023.

Before the Supreme Court, senior counsel Anand Grover raised substantive challenges. The samples collected on  November 19, 2019 were sent to the Forensic Science Laboratory only on  December 10, 2019. No explanation was offered for where the samples were stored during this three-week gap, and no entry was recorded at any police station or storage facility. Further, witnesses deposed that the appellants were apprehended at their home, not at the location stated in the FIR. Grover also pointed out that the quantities were far closer to the small quantity than to the commercial threshold.

The bench did not adjudicate on these merits. The order records that the State addressed the court on the merits, but adds: “we are not going into the same in view of the order the court proposes to pass.” Instead, the bench was persuaded by Grover’s compassionate plea. The appellants had served almost four years of their seven-year sentence. They had no criminal antecedents. Senior counsel submitted that their families had “forsaken” them, that they had no support system in India, and that even the fine of Rs 50,000 was beyond their means.

The bench invoked Article 142 to reduce the sentence to the period already undergone, calculated till  April 8, 2026. The fine was adjusted within the period undergone. The conviction was left undisturbed. The court listed the matter on  April 8 for a report on what modality had been worked out to ensure the appellants’ repatriation.

The decision to bypass the merits deserves notice. If the procedural challenges had force, the appropriate remedy was acquittal, not compassionate sentence reduction. By choosing the latter course, the bench left intact a conviction that the appellants will carry on their records, potentially with consequences in their home country. The trade-off was pragmatic: the appellants secured their release without the uncertainty and delay of a merits adjudication. The attention to repatriation logistics is also significant. Foreign nationals convicted under the NDPS Act routinely find that release from prison does not restore liberty. Without family support or a clear administrative pathway for deportation, they can remain stranded in India for months. The court’s willingness to treat repatriation as part of the sentencing exercise is a welcome development.

A cartel, heroin, and Section 37

The Themboi Singson case occupied the opposite end of the spectrum. The respondent, described as a housewife with no criminal antecedents, was among several accused in a case registered by the Directorate of Revenue Intelligence (DRI) under Sections 8(c), 21(c), 22(c), 23(c) and 27A of the NDPS Act. These provisions cover possession, manufacture, sale and financing of narcotics trafficking in commercial quantities, each carrying a mandatory minimum sentence of ten years. The allegation was that the accused formed part of a cartel dealing in heroin, and the contraband was valued at over Rs 7.5 crore, as stated in the order.

The Gauhati high court granted bail on October 3, 2024. Before the Supreme Court, additional solicitor general N. Venkataraman submitted that the respondent had been in custody for only one year when bail was granted. He pointed to call detail records showing constant communication between the respondent and the co-accused, and to bank statements disclosing that she had transferred substantial amounts in favour of the co-accused within a few days. When the bench asked how a housewife could command such sums, no satisfactory reply was offered.

The bench found that the high court had “clearly misdirected itself” and had “completely lost sight of the fact that offences under NDPS Act, are increasing every day and the damage is caused to the society at large.” Given the documentary trail, it held that “a strong case had been made out against the respondent” and that granting bail after only one year in custody was improper. The bail order was set aside. The respondent was directed to surrender within two weeks.

The outcomes are coherent. The factual and legal distinctions between the two cases are substantial. In Adebakin, the substance was ganja, possessed in intermediate quantities. The offence under Section 20(b)(ii)(B) carries no mandatory minimum sentence. The appellants had served more than half their term. In Themboi Singson, the substance was heroin, in commercial quantities attracting a ten-year mandatory minimum and the stringent bail conditions of Section 37(1)(b). The documentary evidence pointed to active participation in a cartel. The respondent had spent only one year in custody. No reasonable criticism can be levelled at the Bench for arriving at different results on these different facts.

Yet the juxtaposition is instructive, because it exposes the structural unevenness of the NDPS framework. For offences involving intermediate quantities of cannabis, courts retain sentencing discretion. Article 142 supplemented that discretion in Adebakin, allowing the bench to do what the statute permitted but the lower courts had chosen not to.

For offences involving commercial quantities of heroin, the statute leaves almost no room for judicial manoeuvre. Section 37 requires the court to be satisfied that there are reasonable grounds for believing the accused is not guilty and that she is unlikely to offend while on bail. These conditions are mandatory and conjunctive, as the Supreme Court held in State of Kerala v. Rajesh (2020). Once the bench found that the Gauhati high court had not engaged with the evidence before granting bail, the cancellation followed almost automatically.

The Themboi Singson order does leave one question unaddressed. The respondent, like the appellants in Adebakin, had no criminal antecedents. Her counsel described her as a housewife. The order does not consider whether her alleged role in the cartel was that of a principal or a peripheral participant. The NDPS Act does not differentiate between the kingpin and the foot soldier at either the sentencing or the bail stage. That is a legislative gap, not a judicial error. But it means that Section 37 applies with equal force to every person accused of a commercial-quantity offence, regardless of the nature of their involvement.

This is the deeper lesson. The NDPS Act gives courts a binary toolkit. For intermediate quantities, there is discretion, and Article 142 can amplify it in exceptional cases. For commercial quantities, the statute prescribes mandatory minimums and near-irrebuttable presumptions against bail, with no mechanism for calibrating the response to the accused’s role in the offence.

A more granular sentencing framework, one that distinguishes between the courier and the financier, the first-time offender and the repeat player, would reduce the need for extraordinary constitutional intervention on one side and would temper the bluntness of Section 37 on the other. Until the legislature undertakes that reform, courts will continue to navigate NDPS cases the way Justices Amanullah and Mahadevan did in the third week of March 2026: one order at a time, with the tools available.

© The Wire