Thought as a matter of constitutional jurisprudence, bail is considered as a rule and jail as an exception, but there are certain special laws wherein this principle of constitution is opposite and bails are considered as an exception. The reason behind this opposite rule is because of the gravity and sensitivity involved in those matters per se and the impact on the society at large.
Among other special laws, The NDPS Act is one of them and in order to protect the society at large from being affected the act has provided a special provision qua which the bail is not granted unless the courts are satisfied on the two grounds which are as follows:-
Section 37 bar operates in cases of commercial quantity and for the bail in those cases the accused has to satisfy the court on the aspect that “there are sufficient grounds that the accused may not be convicted and that the accused is not likely to commit any offence while on bail”. Since both the ground needs to be satisfied cumulatively and only then the bail is granted.
On the first aspect if the accused is able to satisfy the court that there are sufficient ground that the accused will not be guilty on the basis of preponderance of probabilities as held in Hegedus Lahel Csaba Vs. Union of India and Ors. Delhi High Court observed that for recording the satisfaction that there are reasonable grounds for believing that an accused is not guilty of the offence the court is not to find out as to whether he is proved to be innocent or not; and that for the purpose of section 37 of the Act an accused may ask the court to record its satisfaction on the basis of the preponderance of probability regarding his innocence.
Violation of the mandatory provisions regarding search and seizure, if established at the stage of bail, might be taken into account along with other materials including Panchnama etc, the facts and circumstances in which the contraband was seized, the time when the search was conducted, the place where the contraband was seized and other circumstances pointed out by the Supreme Court in State of Punjab V. Labh Singh, as constituting grounds for belief whether accused was guilty of the offence and whether he was likely to commit any offence while on bail as visualized in sub-section (ii) of clause (b) of sub-section (1) of Section 37 of the NDPS Act.
Second aspect of the same is that the satisfaction that the accused is not likely to commit any offence while on bail wherein the Hon’ble Punjab and Haryana High Court was of the view that no hard and fast rule can be set down that would enable the courts to determine whether an accused is likely to commit an offence, if released on bail. The relevant consideration that might be taken into consideration is the background, the general character and the records available with the police etc. The court was further of the view that there could be no instrument to assess human behaviour and no means are available with the court to predict with certainty the future course of events and, therefore the provisions have to be read, taking into consideration the circumstances already existing.
If the accused is able to satisfy the court on both the counts, then only the bail can be granted and not otherwise.