Bail in NDPS Act

The meaning of bail is  “the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court”

Bail in NDPS Act. Section 37 says that no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond.

By the virtue of section 37 of NDPS Act all the offence under the act are cognizable, meaning thereby that police can arrest the person who commit any of the offence without warrant. But for this section as per the scheme enshrined in the part II of firt Schedule to the code of Criminal Procedure, 1973, offences under sections 8A, 26,27,32,46,47,58, and 59(1) and offences relating to small quantity would have been non-cognizable.

Grounds for bail in NDPS Act.

In the case of Mathew vs State of Kerala, Kerala High Court observed that section 37 of the NDPS Act mentions the expression “Non-Bailable, but it cannot said that all the offences under the Act are Not Bailable.

8…..reading of Section 37sans the head note must clearly show that there is no specific stipulation in the body of Section 37which makes the offence under Section 20(b)(ii)(A) a non-bailable one. The stipulation in the schedule to the Cr.P.C is not seen modified by any specific provisions of Section 37. The body of Section 37 is silent as to whether an offence under the Narcotic Drugs and Psychotropic Substances Act is bailable or non bailable…..

9. Thus there can be no trace of doubt that going by the language employed in the body of Section 37, the offence under Section 20(b)(ii)(A)is a bailable offence.

10. The learned Public Prosecutor contends that the head note of Section 37clearly shows that all offences under the Narcotic Drugs and Psychotropic Substances Actare cognizable and bailable. It is true that the head note reads thus

“Offences to be Cognizable and non-bailable”.

In the body of Section 37, there is nothing that declares of offences under the Narcotic Drugs and Psychotropic Substances Act to be non bailable but the head note suggests such a possibility. There is clear, apparent and evident incongruity between the head note and the body of Section 37. The question is what would prevail.

11. The learned Public Prosecutor further points out that the statements of objects and reasons in the amendment Act 2 of 1989 by which Section 37was amended also makes it clear that the legislative exercises of amendment was inter alia “to provide that the offences shall be cognizable and non bailable”. Clause 2

(vii) stipulates that the purpose of amendment was to provide that the offences shall be cognizable and non bailable. The earlier Section 37 was amended in 1989 to include this head note.

12. Thus it is seen that the objects and reasons as also the head note indicate and suggest that all offences under the Narcotic Drugs and Psychotropic Substances Actare non bailable whereas the clear unambiguous stipulations in the body of Section 37does not lead to such a conclusion.

13. It is not necessary to search for the principles of law applicable. It is axiomatic in the interpretation of statutes that when the enacted provisions of the statue in the body of the statutory provisions show a particular conclusion, the head note or the objects and reasons cannot nullify or modify the effect of the enacted provisions in the body of the statute……  

In respect of offences not enumerated in section 37, the bail provisions of Cr.P.C apply.

In the matter of Shaffi Mohammed Vs. State of Rajsthan, Rajsthan court observed that in view of the section 37 of the NDPS Ac would make it clear that sub-clause (ii) of clause (b) of sub-clause (1) of section 37 would be applicable only in respect of offence under the section 19 or 24 or 27A and also for offences involving commercial quantity.

The court was of the view of that in case of such cases at least two conditions should be kept in mind at the time of considering the bail application under section 439 of CrPC 1973.

(Note:- Normally the accused not to be released on bail till the investigation is pending.)

Jurisdiction

In the matter of Mizoram Vs. Zoliana bail was granted by the additional District Magistrate in a case involving seizure of 130 gram of heroin.

The Hon’ble Gauhati High Court was in the view that the matter is exclusively triable by the special court under the act which debars the Jurisdiction of any other court including the Additional District Magistrate to try or grant bail to the accused.

No Prima Facie Case

Bail under section 37 of the NDPS Act can be granted only in cases where there is no Prima Facie case. The Hon’ble Jammu and Kashmir court was of the view that the sheer anchor of section 37 of the NDPS Act seems to be that bail could be granted only in case where there was no prima facie case against the accused. In the matter of Nazir Ahmed Wani vs State Of Jammu And Kashmir jammu and Kashmir court observed :-

The basis for framing the charge obviously was the satisfaction of the Court that prima facie material existed against the accused for framing such a charge. Once that was so the bail matter was rejected by the Trial Court because it had in the first breath laid down that there did exist prima facie material for such a charge. Section 37 of the Act disallows grant of bail where a prima facie case is made out. The approach of the trial Court has been correct. Same keeps harmony with Section 37.

Reasonable Ground

In the matter of Shiv kumar Nagpal Vs. State of Haryana, Punjab and Harayan high court was of the view that the word “reasonable grounds” in section 37 of the NDPS Act cannot be read to mean “proved” as used in the Indian Evidence Act; such as interpretation would, set in naught the power vested in a court to grant bail pending trail.

And in the matter union of india vs Shiv shanker kesari supreme court observed that :-

8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word ‘reasonable’. Stroud’s Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word “reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy. (See: Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another(1987) 4 SCC 497. and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another[(1989) 1 SCC 532].

9. It is often said “an attempt to give a specific meaning to the word ‘reasonable’ is trying to count what is not number and measure what is not space”. The author of ‘Words and Phrases’ (Permanent Edition) has quoted from in re Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, “the expression ‘reasonable’ is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined”. It is not meant to be expedient or convenient but certainly something more than that.

10. The word ‘reasonable’ signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315).

Grounds for believing not guilty of offence

Under the section 37 of the NDPS Act the court is to only develop a belief and not to make a finding of not guilty under section 248 of the CrPC. The person is not likely to commit the an offence in future.

Sufficient ground that the petitioner may not be Convicted

In the matter of Ram narayan Vs state delhi high obversed that Court should be satisfied having regard to the Material available on record that there are sufficient grounds that the petitioner may not be convicted.

“6. In the backdrop of the foregoing principles, I find that the differences in the test results of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial. However, on the basis of the materials brought on record, there is every likelihood that the petitioner may not be convicted in this case. It is further to be examined as to whether there is any likelihood of the petitioner committing any offence while on bail. In this regard, the Supreme Court in the aforesaid decision, held that the satisfaction of the court as regards the likelihood of not committing any offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. It furhter held (in paragraph 55 of the said report) that since it is difficult to predict the future conduct of the accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence….”

Grant of bail on the ground of not forwarding the accused to the nearest judicial magistrate within 24 hours

In the matter of Suaibo Ibow cassarna Vs Union of india and sate of Maharashtra, Bombay high court was of the view of the view that the non-production of the accused within 24 hours of his arrest was clear violation of the fundamental rights guaranteed under the article 21 and 22 of the constitution on india and that on the limited ground of violation of provisions of articles 21 and 22 of the constitution, the petitioner was entitled to bail. The court observed that­:-

Having regard to the settled position in law and having regard to the scheme of the provisions of section 104 of the customs act and section 42 of th NDPS ACT  it is high time that the investigating officers realise that the moment the accused was apprehended and put under complete control of the investigating officer with absolute restrictions on his movements, his arrest would be complete in law. Merely saying in the remand application that the arrest was recorded later, may be a day or two later, is unlikely to convince any Court of law and reflects very poorly on the investigating agency. Recording of the seizure panchanama and statements which are generally the two immediate steps taken could not have taken more than say 12 hours. If that be so, nothing prevented the investigation agency to produce the accused before the Magistrate within the stipulated period of 24 hours. This is not only the mandate of section 57 and section 167 of the code of criminal procedure but this is the mandate of articles 21 and 22 of the constitution of india. It is unfortunate that the Customs Officials and officials of the Narcotics Cell are indifferent to these elementary but salutary requirements regarding detention beyond 24 hours not being permissible unless the accused was produced before a Magistrate. I have my own doubts as to what would have been the fate of this application in the absence of the first contention being upheld. Many a case under the N.D.P.S. Act which would otherwise [end] in rejection of the application for bail by virtue of the provisions of section 37 of the n.d.p.s. act, would have to end in grant of bail, if there is a total violation of the mandate contained in article 21 and 22 of the constitution. It is, therefore, necessary for the investigating agency, be it the provisions of articles 21 and 22 of the constitution and ensure that utmost care is taken to comply with the same.