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Key Takeaways

  • Bail can be understood as a procedure by which a judge or magistrate sets free someone who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner’s later appearance in court for further proceedings.
  • When a person is arrested and booked by the police, they have the right to apply for bail through a bail application. The application is considered by the Magistrate in the bail hearing.
  • Section 37 of the NDPS Act states that all offences under the Act are cognizable and non-bailable. However, there is much controversy surrounding this provision and its interpretations.
  • Early October of 2021, the NCB raided a cruise party off the Mumbai coast. Among those detained in the bust was Aryan Khan. Their first request for bail was rejected. The NCB has no specific evidence against Khan in particular, except for WhatsApp chats.

Introduction

Bail can be understood as a procedure by which a judge or magistrate sets free someone who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner’s later appearance in court for further proceedings. The money set by the judge is in the form of a bail bond, it is set after hearing the charges and determining the amount appropriate for the circumstances.

The nature of the offence determines the ease of obtaining bail. An offence is classified into bailable and non-bailable. In case of a bailable offence, a grant of bail is a right that is available to the accused. This may be given by a police officer who has the custody of the accused or by the court under whose jurisdiction the offence falls. The court can however refuse bail to an accused, even where the offence is bailable if the person does not comply with the provisions of the bail bond. A non-bailable offence, on the other hand, is a crime in which the grant of bail is not a matter of right. The accused has to seek the permission of the court, and upon the discretion of the court based on the facts, bail is granted.

While granting bail, the court usually keeps some points in mind.

(a) Nature of the accusations and the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) Prima facie satisfaction of the Court in support of the charge.

(d) Frivolity in prosecution.

Bail may also be denied if the court is convinced that the accused may abscond, or prevent arrest.

Typically, the power to grant bail in a non-bailable case is derived from Section 437 of the Code of Criminal Procedure, but certain laws such as the UAPA and the NDPS apply additional conditions on bail.

Procedure for bail

When a person is arrested and booked by the police, they have the right to apply for bail through a bail application. The application is considered by the Magistrate in the bail hearing. Both parties present why or why not a person should be given bail. When deciding bail, the following factors are usually kept in mind:

  • The character of the accused,
  • Nature of the crime for which the accused has been convicted,
  • His employment situation and financial conditions,
  • His background history,
  • Whether the accused has been convicted before and if yes, then his regularity in the scheduled appearances by the judge,
  • His family background and history,
  • For how many years he has been a resident of the community, he is currently living in.

If the evidence is insufficient, or the judge is convinced that the bail is not appropriate in the situation, it is denied. Otherwise, the bail amount is set and the bail is granted. The bail amount depends on the gravity of the crime, employment status, previous criminal records etc. On the imposition of bail, certain conditions are usually set which the accused must comply with. In certain cases, a person may get bail, without approaching the court at the police station itself.

Indian law emphasises on the presumption of innocence and freedom from arbitrary detention, which is why while considering a bail application, the court balances considerations of personal liberty with the public interest.

Cruise Ship Drug Case

The Narcotic Drugs and Psychotropic Substances Act, 1985 has been at the centre of public conversation twice in the past year. Most recently Shah Rukh Khan’s son, Aryan Khan, along with others was charged with various sections under the NDPS Act. Early October of 2021, the NCB raided a cruise party off the Mumbai coast. Among those detained in the raid was Aryan Khan. At the first bail hearing for Aryan Khan, it was argued that he was not found to be in possession of any drugs. Aryan and the others were however sent to NCB custody by the court. The first request for bail was rejected. The NCB has said that their investigation has revealed Aryan Khan’s role in illicit procurement and distribution of contraband. A total of 20 people, including two Nigerian nationals, have been arrested so far in the case. The NCB has claimed that Khan’s WhatsApp chats were ‘suspicious’ and point towards a ‘larger international drugs-related conspiracy’.

Khan is booked under Sections 8(C) read with 20, 35 and 27 of the Narcotic Drugs and Psychotropic Substances Act, which inter alia, prohibits consumption, or possession of narcotic drug or psychotropic substance.

The NDPS Act

The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is the Actpreventing a person from producing/manufacturing/cultivating, possessing, selling, purchasing, transporting, storing and/or consuming any narcotic drug or psychotropic substance. The purpose of the law was to enact stringent provisions and consolidate the law related to psychotropic and narcotic substances. Under the Act, the Narcotics Bureau (NCB) has been set up, to overlook compliance with the Act.The Act describes a ‘narcotic drug’ as “coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs”. The Act punishes any use of such drugs for purposes other than medical or scientific.

Section 37 of the Act states that all offences under the Act are cognizable and non-bailable.However, there is much controversy surrounding this provision and its interpretations. In October of 2020, when the NDPS Act was invoked against Rhea Chakraborty, the Bombay High Court declared that even offenders possessing small quantities of illicit material cannot claim bail as a right. It declared that all offences under the Act are non-bailable, regardless of the gravity of the offence. This was opposite to two rulings given by the Delhi and Bombay High Courts a few years prior, where it was ruled that possession of small quantities of drugs is a bailable offence, and suspects can be released on bail without approaching the court. In the 2020 case, the court placed reliance on a 1999 judgment of the Constitution Bench of the Supreme Court, where it was held that all offences are under the NDPS Act were non-bailable. The contention that, this declaration of the Supreme Court was just a passing reference and not binding, was rejected by the judge, who asserted that this has been subsequently referred to by other Apex Court benches as precedent.

The issue of bail under the Act has been addressed in several rulings. The bench of Dr DY Chandrachud and BV Nagarathna, JJ in the Supreme Court elaborated that;

“… the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

In the Union of India v. Shiv Shanker Kesar, (2007), it was stated that if these parameters are not adhered to, bail can be cancelled. The grounds for bail must be reasonable, this means, the grounds have to be more than just prima facie grounds. What is reasonable may be determined on a case-by-case basis.

The grant of bail has to be within the boundaries of the law, and the court must consider all factors before granting it. Where a court fails to do so, the responsibility is on the appellate court to consider if there has been a non-application of mind by the lower court, before setting aside a grant for bail. The bail provisions under the NDPS Act are stringent, and the 2020 ruling has made it even more strict. The quantum of punishment is dependent on the quantity of the substance in possession, which also means obtaining bail is more difficult if the accused has a large quantity of the substance. By this logic, bail should be easily available for possession of a small quantity.

The Case against Aryan Khan

The NCB has no specific evidence against Khan in particular, except for WhatsApp chats. While Khan himself had no drugs in his possession, his friend who was arrested with him had 6 grams and Dhamecha had 5 grams of charas, (cannabis), on them. In the NDPS Act, under Section 20(b)maximum punishment for the purchase of a quantity of the substance is one year's imprisonment plus a fine. For consumption of charas, under Section 27, NDPS Act the maximum punishment is six months' imprisonment plus fine. These offences are clearly mild, and usually as per the Code of Criminal Procedure, this low level of punishment would mean that the offences of purchase and consumption of charas would be bailable.

This is where the NCB is insisting that all offences under the NDPS Act, including these offences with lower punishments, are non-bailableand therefore bail is not a matter of right. Their argument is based on the decision of the High Court Bench in the Rhea Chakraborty case, where the court analysed all offences under the NDPS Act to be non-bailable. Khan’s lawyer has repeatedly argued that this finding of the court was incorrect, and reliance should be placed on the earlier judgements by the Delhi and Bombay High Courts.

Usually, when anillicit drug is recovered from the person, the presumption is that an offence has been committed. But the police in Khan’s case lack incriminating evidence of him possessing the banned substance. This should mean that bail would be granted but that is not the case. The court does not need to keep the accused in custody, while the NCB searches for evidence against them, to justify the conspiracy. Further, the accused do not possess a criminal record and have not proven to be likely to abscond. The denial of bail so far seems arbitrary. Many find it difficult to see why bail is being denied.

At the bail stage, the court is not required to declare the finding of ‘not guilty’, but just needs satisfaction that there are reasonable grounds on which it may be proved that the accused is not guilty. The Apex Court in the case of Union of India v. Rattan Mallik @ Habul was stating;

“We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of `not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.”

It has been pointed out by Congress leader Kapil Sibalthat the drug case has cropped at a time when the controversy surrounding the LakhimpurKheri incident was gaining media traction. The incident relates to the arrest of Ashish Mishra, son of Minister of State for Home, in connection with the mowing down of four in LakhimpurKheri in Uttar Pradesh.

Conclusion

The grant of bail is dependent on the court’s discretion, it allows freedom to an accused before the trial. Under the NDPS Act,the provision of Section 37 hasdeclared that all offences under the Act will be non-bailable, which means bail is not a matter of right under the Act. The Act aims to put strong restrictions on drug-related activities. On a larger scale, this is an important step for India which has a major drug-related problem. But the usage of this Act in the Cruise Ship Drug Case has been problematic. While offences under the Act were non-bailable, the High Courts have used their jurisdiction to declare that possession of a small quantity of illicit material would be a bailable offence.This was the precedent until the Bombay High Court in 2020 said that all offences under the Act were to be treated as non-bailable. The NCB has placed its reliance on this declaration to fight the bail claim of the accused in the Cruise ship case. Although there is no concrete evidence against Aryan Khan, he has been denied bail, the next bail plea is set for 20th October.

The court and the NCB’s actions are heavily criticised as it seems they are applying the principle of “guilty until proven innocent” on Aryan Khan. The case has also diverted attention from other political headlines, which has further sent the online society into a frenzy. While the NDPS Act is made with noble intentions, within 1 year it has been used twice against a public figure to distract from political happenings. If the authorities claim that they are trying to fight the war on drugs, their actions should be focused on actual issues.

Questions

  • What is the nature of offences under the NDPS Act, 1985?
  • Why was Aryan Khan denied Bail?

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