DECODING THE CONCEPT OF BAIL UNDER THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT (NDPS), 1985

The Narcotics Drugs and Psychotropic Substances Act (NDPS ACT) 1985 was enacted within the year 1985, with a view to consolidate and amend the law concerning narcotic drugs, incorporating stringent provisions for control and regulation of operations concerning narcotic drugs and psychotropic substances.

Bail are often understood as a procedure by which a judge or magistrate sets free someone who has been arrested or imprisoned, upon receipt of security to make sure the released prisoner’s later appearance in court for further proceedings. The money set by the judge is within the sort of a bail, it’s set after hearing the fees and determining the quantity appropriate for the circumstances.

NDPS Act categorizes the offences into Three Categories: –

Small Quantity: –As per section 37 of the NDPS Act, 1985 all the offences falling under the act are cognizable and non-bailable. Meaning thereby, if we pass section 37 of the NDPS Act,1985 even the matters concerning small quantity are non-bailable.Hon’ble Delhi High Court for the first time in Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. on 8 May, 2012 has held that the matter involving small quantity are bailable regardless of the very fact that it’s mentioned within the NDPS ACT, 1985 that each one offences are cognizable and non-bailable.

Intermediate Quantity (less than commercial)

For the offences falling under the intermediate or but commercial quantity stringent provisions of section 37 aren’t attracted and therefore the offences under the said category are governed by Section 437 of the Code of Criminal Procedure,1973 i.e. general principles for grant of bail as applied in other cognizable and non-bailable offences.

Commercial Quantity

Commercial quantity offences are punishable with not but 10 years and there’s an embargo of Section 37 of the NDPS, 1985 in thus far because the bail in commercial quantity is concerned.

THE DETAILED BREAKDOWN OF SECTION 37 IS AS FOLLOWS:

1. The section states every offence punishable under the Act shall be cognizable.

2. No person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity] shall be released on bail or on his own bond, unless the following conditions are met.

3. For granting bail, the following conditions are to be met,

(i) There are reasonable grounds for believing that the accused isn’t guilty of such offence.

(ii) That he’s unlikely to commit any offence while on bail.

The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The scheme of Section 37 reveals that the exercise of power to grant bail isn’t only subject to the restrictions contained under Section 439 of the Code of Criminal Procedure (CrPC), but is additionally subject to the limitation placed by Section 37, which begins with a non-obstante clause.

CONSIDERATIONS FOR GRANTING BAIL UNDER NDPS ACT:

Before granting bail, the Court is named upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence which he’s not likely to commit any offence while on bail, the allegations of the fact, the police report have to be closely examined before recording a finding as to whether the conditions given under the said section, are fulfilled or not.

Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are to be exercised with embargo and conditions as laid down under Sec. 37 of the Act.Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a negative approach and to decline bail but when the legislature have required the court to record a finding of its satisfaction of certain facts, the duty is bestowed upon the court is in positive terms. Grant of Bail could be a rule and its rejection an exception.

GROUNDS FOR CANCELLATION OF BAIL:

What has been stated in Section 37 of the Act would be applicable, accordingly when the question of release on bail is considered. But once an accused has been released on Bail, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which Bail can be otherwise cancelled.The important grounds for cancellation of Bail are:i. Where the accused misuses his liberty by getting involved in similar criminal activity,ii. Interferes with the course of investigation,iii. Attempts to tamper with evidence or witnesses,iv. Likelihood of fleeing, etc.

HOW COURTS HAVE DEALT WITH THE MATTERS PERTAINING TO BAIL?

The bench of DY Chandrachud and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held 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’s likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and so as to curb the menace of drug-trafficking within the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

In the case of Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798Holding that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act, the Court observed,“The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something quite clear grounds. It connotes substantial probable causes for believing that the accused isn’t guilty of the offence charged and this reasonable belief contemplated successively points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused isn’t guilty of the offence charged.The word “reasonable” has in law the clear meaning of reasonable in reference to those circumstances of which the actor, called on to act reasonably, knows or need to know. It is difficult to offer a particular definition of the word “reasonable”.

In the ultimate analysis it’s a matter of fact, whether a specific act is reasonable or not depends on the circumstances during a given situation. (Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]The court while considering the appliance for bail with regard to Section 37 of the Act isn’t called upon to record a finding of acquitted. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is named upon to ascertain if there are reasonable grounds for believing that the accused isn’t guilty and records its satisfaction about the existence of such grounds. But the court has to not consider the matter as if it’s pronouncing a judgment of acquittal and recording a finding of acquitted.”

CONCLUSION

Section 37 of the NDPS Act works as an interference when it comes to offences related to medicines. It’s necessary because it leads to the creation of fear among people that if they commit a crime under this Act, they won’t be granted bail. On the other hand, this provision occasionally becomes draconian as innocent people get jugged. Therefore, the bar needs to borrow an exemplary principle to insure justice. he Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted with the objective of controlling and regulating the transportation, usage and/or consumption of these illicit substances.

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