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The Narcotics Drugs and Psychotropic Substances Act 1985 was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances.  This act categorizes the offense into three categories:- 

1. Small Quantity:- As per section 37 of the NDPS Act, 1985 all the offenses falling under the NDPS Act are cognizable and non-bailable. Meaning thereby, if we go by section 37 of the NDPS Act,1985 even the matters pertaining to small quantity are non-bailable. However, if we go by schedule 2 of Cr.P.C 1973, the offenses punishable up to two years are bailable. There have been instances where the special courts under NDPS Act,1985 even refused to admit persons arrested for small quantity on bail by referring to the aforesaid section 37 of the NDPS Act,1985. Then Hon’ble Delhi High Court for the first time in Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. on 8 May, 2012 held that the matter involving small quantity are bailable irrespective of the fact that it is mentioned in the NDPS Act, 1985 that all offenses are cognizable and non-bailable. 

2. Intermediate Quantity (less than commercial) - For the offenses falling under the intermediate or less than commercial quantity stringent provisions of section 37 are not attracted and the said category is governed by Section 437 of the Code of Criminal Procedure. Commercial Quantity offenses are punishable not less than 10 years and there is an embargo of Section 37 of the NDPS, 1985 in so far as the bail in commercial quantity is concerned. As per section 37 of the NDPS ACT, 1985 bail should not be granted to an accused unless and until there are reasons to believe that the accused has not committed the offense for which he is charged with another condition that an advance notice is given to the prosecutor and the accused should not commit offenses if he be granted bail.   

Hon’ble Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another: 2005 AIR SCW 2215 while considering the provisions of Section 21 of the Maharashtra (Control of Organized Crime) Act, 1999 which are para-materia to Section 37 of the NDPS ACT, has laid down the approach to be adopted while deciding the bail application:-

“Section 21(4) of MCOCA does not make any distinction between an offense which entails a punishment of life imprisonment and imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to enlarge him on bail. Each case, therefore, must be considered on its own facts. The question as to whether he is involved in the commission of organized crime or abetment thereof must be judged objectively. Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not by itself be sufficient to continue to keep him behind the bars although on an objective consideration the court may come to the conclusion that the evidences against him are not such as would lead to his conviction.  In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete.

The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offense under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after the grant of bail. However, such an offense in the future must be an offense under the Act and not any other offense. Since it is difficult to predict the future conduct of an 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 manner in which he is alleged to have committed the offence. It is furthermore trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction.

The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.”  Re-affirming the principles laid down by Hon’ble Supreme Court in Ranjitsing Brahmajeetsing vs State Of Maharashtra & Anr on 7 April, 2005 Delhi High Court in Ram Narayan vs State on 24 May, 2005 granted regular bail to an accused in commercial quantity. Also in Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 Hon’ble Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:  “The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.  Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion."  Re-affirming the principles laid down in Ranjitsing Brahmajeetsing vs State Of Maharashtra & Anr on 7 April, 2005 and Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 Delhi High Court in Amarjeet Singh vs D.R.I. on 29 May, 2009 has granted bail to an accused in commercial quantity. 

In short, the relevant consideration that might be taken into consideration is the background, the general character and the records available with the police etc. and bail could be granted by Court of law depending upon the facts and circumstances of the case. Nature of the offence and the gravity thereof and also the antecedents of the accused are the relevant consideration for the court at the time of disposing of the bail application. Even otherwise, grant of bail is a rule and its rejection is an exception, also that the accused is innocent till guilt is proved. These cardinal principles of criminal law have to be borne in mind while considering the concession of bail.

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