In the 70-page detailed order passed on October 7, 2020, while granting bail to the actress Rhea Chakraborty, Justice Sarang V. Kotwal, at the Bombay High Court, has devoted more than one-third portion of his order to discuss the aspect of the case, as to whether all the offences under the NDPS Act are non-bailable.
In support of his contention that the offences involving small quantities are bailable, the applicant’s counsel Satish L. Maneshinde relied on a judgment of a Single Judge of this HC in the case – Stefan Mueller v. State of Maharashtra – 2010 SCC OnLine Bom 1974. In this case it was held that the offences involving small quantities of contraband were bailable offences. This judgment was relied on by a Delhi HC division bench.
In the Stefan Mueller’s case, the Single Judge Bench has observed that the heading or marginal note of section 37 reads as “offences to be cognizable and non-bailable”. However, the language of section 37 itself mentions that every offence punishable under this Act shall be cognizable, but, there is no such similar sentence mentioning that every offence punishable under the NDPS Act shall be non-bailable.
In cases of conflict between the plain language of the provisions and the meaning of the heading or title, the heading or title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder.
The Single Judge Bench has observed that since the Legislature has not declared specifically under section 37 that all the offences under the Act shall be non-bailable , the provisions of the Cr.P.C. are required to be looked into to find out whether the offences under the NDPS Act are bailable or not. The said Judge also pointed out that the classification under part-II of the Schedule to Cr.P.C. mentions that the offences in other laws are bailable if those are punishable with imprisonment for less than 3 years or with fine only.
Therefore, according to the said Judge, since the offences involving small quantity of the contraband were punishable with sentences of less than 3 years, these offences would be bailable. In the same judgment, it was further held that in bailable offences, even conditions cannot be imposed on the accused in view of provisions of section 436 of Cr.P.C.
When the Act was brought in force in the year 1985, there was no mention in the Act itself as to whether the offences would be bailable or non-bailable. Therefore, obviously to consider this aspect, recourse needed to be taken to the provisions of Cr.P.C. that is Part II of its Schedule. It is important to be noted that the Act, as it stood then in 1985, section27 provided punishment for illegal possession in small quantity for personal consumption of a contraband and under that section the maximum punishment was one year. Similarly sections 26 and 31 provided lesser punishments. All the other offences, provided punishment of rigorous imprisonment for a term which was not less than 10 years. Thus, there were bailable as well as non-bailable offences mentioned under the NDPS Act in 1985, applying Part II of Schedule of Cr.P.C.
Subsequently, the Legislature felt that though the major offences were non-bailable by virtue of level of punishment, on technical grounds the drug offenders were released on bail. Therefore, it was felt necessary to make the offences cognizable and non-bailable.
Accordingly, section 37 was amended. The marginal note of the amendment reads “offences to be cognizable and non-bailable”; and after 1988 amendment, for the first time there was reference in section 37 to special provisions for bail for offences under NDPS Act. The rigours were introduced for offences punishable with imprisonment of five years or more. Sub-section (2) mentioned that the limitations on granting bail were in addition to the limitations under Cr.P.C. or any other law for the time being in force.
Section 37 was further amended in the year 2001. At that time, sentencing structure was introduced depending on the quantity of drugs in respect of certain penal sections of NDPS Act. Thus, it can be seen that in the year 1985, Cr.P.C. governed the provisions of bail for NDPS Offences. By the amendment carried in the year 1989, with effect from May 29, 1989, for the first time, the provisions of Cr.P.C. were excluded by specifically introducing a non obstante clause excluding application of Cr.P.C. for grant of bail. If there was inconsistency between the NDPS Act and Cr.P.C. the provisions of NDPS Act were to prevail.
In the year 2001, the Act was further amended. However, significantly the structure of Section 37 did not change. The only major difference was that the provisions for grant of bail were made less severe for offences involving quantities less than the commercial quantity of a contraband In addition, of course, the rigours did apply to sections 19, 24 and 27A.
As observed by the Single Judge in Stefan Mueller’s case, there was no specific sentence categorically stating that every offence punishable under the NDPS ACT was non-bailable. The title was – “ offences to be cognizable and non-bailable”. The same position existed before 2001 between 1989 to 2001 as well.
In the 1985 Act except sections 26, 27 and 32, all other offences were non-bailable as per the Schedule of Cr.P.C. and yet necessity was felt to make offences non-bailable as mentioned in the statement of Objects and Reasons. The concept of small quantity was already there in the then existing section 27. Therefore, the amendment to section 37 in the year 1989 and then in the year 2001 will not be affected by concept of “small quantity” introduced in sentencing structure of other penal sections.
In the Bombay HC’s opinion, the situation is completely clarified by a decision of the SC Constitution Bench in the case – State of Punjab v. Baldev Singh – (1999) 6 SCC 172. While deciding various facets of section 50 of the NDPS ACT, the SC considered as to why this Act was brought in force and also considered other provisions and as to how these provisions were interpreted. The entire scheme of the Act was considered in detail.
The SC has considered the amendment Act of 1988 in detail and in clear terms it is mentioned with no uncertainty that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.” This categorical statement shows that section37, firstly makes all offences non-bailable; and, secondly, also lays down stringent conditions for grant of bail.