Bail under NDPS Act

The Narcotic Drugs and Psychotropic Substances Act (NDPS Act) of 1985 stands as a pivotal legislation in India’s efforts to combat drug abuse and trafficking. Enacted on November 14th, 1985, the NDPS Act was a response to the growing menace of illicit drug activities across the nation. At times, obtaining bail under NDPS ACT becomes challenging due to the stringent provisions outlined in Section 37 of the Act. In this article, we delve into the intricacies of bail provisions under the NDPS Act, exploring its objectives, categorization of offences, judicial interpretations, and the evolving legal landscape surrounding bail applications.

Objectives of the NDPS Act:

The NDPS Act, at its core, aims to achieve several key objectives:

1. Legal Framework Enhancement:

   The Act sought to streamline and modernize existing laws related to narcotic drugs and psychotropic substances. By consolidating various statutes and regulations, the NDPS Act aimed to create a robust legal framework to effectively address drug-related offenses.

2. Control and Regulation:

   Central to the NDPS Act is the establishment of stringent provisions to control and regulate the production, distribution, and consumption of narcotic drugs and psychotropic substances. Through proactive measures, including licensing, monitoring, and enforcement, the Act aims to curb illicit drug activities and safeguard public health and safety.

3. Prevention of Trafficking:

   Recognizing the transnational nature of drug trafficking, the NDPS Act introduced comprehensive measures to prevent the illicit trafficking of drugs across national and international borders. By strengthening surveillance, intelligence gathering, and enforcement mechanisms, the Act aims to disrupt and dismantle drug trafficking networks.

Categorization of Offenses:

The NDPS Act categorizes drug-related offenses into three distinct categories based on the quantity of drugs involved:

1. Small Quantity:

Small quantity of drugs refers to the quantity which is not grave, but on the other hand it does not means that if you are carrying small quantity is legal or not punishable under NDPS ACT, under section 37 of the NDPS ACT, 1985 all the offences which are falling under the act are cognizable and non-bailable, but on the other hand first schedule part II entry no. 3 of Criminal Procedural Code, 1973, says if offence against other laws “if punishable with imprisonment for less than 3 years or with fine only” are non-cognizable as well as bailable.

A person who was apprehended arrested for an offence under section 21(a), NDPS Act. Person relied upon Mathew @ Raju (Supra) and Frick India Ltd. (Supra) to submit that the offence punishable with imprisonment of one year is bailable offence. The Gauhati High Court did extend the benefit of anticipatory bail to the accused person but it did not lay down any law as to whether indeed such an offence was bailable or not.[1]

The hon’ble Delhi high court held that the matters of small quantities are bailable irrespective of the fact that it is mentioned in the NDPS ACT, 1985 that all offences are cognizable and non-bailable.[2]

2. Intermediate Quantity:

Now we will discuss Intermediate Quantity. Intermediate Quantity refers to the quantity which is more than a small quantity but less than a commercial quantity.

Himachal Pradesh High Court passed a judgement related to the possession of intermediate quantities of narcotic drugs. The petitioner is a habitual offender under the NDPS Act 1985; he was arrested for possession of 334 grams of Charas. In the case of Charas, only quantities above 1kg can be considered as commercial quantities. The petitioner approached the high court for bail in this matter contending that incarceration before his guilt was established would be a grave injustice to both him and his family and that the court should grant him bail as the matter was still being adjudicated upon. Whereas the state contended that his record as a habitual offender should be considered and he should be denied bail due to the same.[3]

Supreme Court declared that the rigours of the provisions of Section 37 of the NDPS act cannot be justified in cases of intermediate possession of narcotic substances.[4]

The case of Sunny Kapoor v State of Himachal Pradesh [CrMPM 2168 of 2020] was also cited, where it was established that any quantity that is less than commercial does not warrant the rigours of Section 37 of the NDPS meaning the grant of bail is acceptable and the accused cannot be sentenced to more than 10 years of imprisonment. The court noted that the quantity of charas which the petitioner was in possession of was only around one-third of the commercial quantity and still fell under intermediate quantity, however, decided to impose certain conditions to the bail granted such as a bond, sureties, regular attendance in court and full cooperation in the investigation of the case.[5]

3. Commercial Quantity:

Commercial quantity is the quantity which is more than small and intermediate quantity. Offences under commercial quantity under section 37 of NDPS ACT, are non-bailable.

However, U/S 37 of NDPS ACT, if the court finds that the accused is not guilty of an offence or is not likely to indulge in the sale or purchase of narcotics drugs, bail can be granted to the person.

The supreme court held that after having carefully considered the contents of the FIR and material placed on record, it appears that the embargo of Section 37 of the NDPS Act is not applicable to the facts of the present case as seized contraband Ganja is found to be a small quantity. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.[6]

While allowing the bail application of the accused persons the provisions of Section 41B of the Code of Criminal Procedure have to be complied with and there cannot be any discrepancy inherent in the seizure list in order to raise a proper presumption under Section 37 of the N.D.P.S. Act, we are of the opinion that the petitioners are entitled to bail.[7]

Clarity in Bail Provisions:

The interpretation of bail provisions under the NDPS Act has been subject to legal scrutiny and debate. The Supreme Court, in its deliberations on bail applications under Section 37, has emphasized the need for a balanced approach. Bail decisions, according to the Court, should not be equated with findings of guilt or innocence. Instead, they should be based on reasonable grounds for believing in the accused’s innocence and an assessment of the likelihood of the accused committing further offenses while on bail.

Legal Precedents:

An FIR was registered against the petitioner u/s 21(b)/@7-A/29/61/85 of the NDPS Act alleging that he was found in possession of 15gm. of “HEROIN”. After an investigation by the police, the chargesheet was filed before the court but the report was not accompanied by the reports of FSL.

The mandatory period of 60 days for filing of challan in cases of recovery of a non-commercial quantity of contraband, as per provisions of the NDPS Act read with Section 167 Cr.P.C. expired on 10.4.2022 and the prosecution did not file the FSL report even by the said date. As a consequence, the petitioner moved an application under Section 167(2) Cr.P.C. for bail on the ground that in the absence of FSL report, the challan could not be said to be complete. Default bail was granted to the accused.[8]

Whether a Bail Can be cancelled Once Granted?

In a recent case When bail is granted by the high court with the specific condition can not be cancelled.

The supreme court of its case held that Appeal against Calcutta High Court order granted bail to a person accused under Sections 21(b)/29/27A of NDPS Act – Dismissed – No reason to consider interference in the order passed by the High Court granting bail to the respondent with specific conditions. [9]

Conclusion:

In conclusion, the NDPS Act represents a significant legislative effort to combat drug abuse and trafficking in India. While its bail provisions have been subject to interpretation and debate, judicial precedents and evolving legal frameworks continue to shape the landscape of drug-related offenses and bail applications. Moving forward, a balanced approach that upholds the principles of justice, fairness, and individual rights will be essential in ensuring effective enforcement of the NDPS Act.

This article aims to provide clarity and insight into the complexities of bail provisions under the NDPS Act, highlighting the need for a nuanced understanding of legal principles and judicial interpretations. As the fight against drug abuse and trafficking persists, a holistic approach that balances enforcement with individual rights will be crucial in achieving the objectives of the Act and safeguarding the well-being of society.

[1] Najimuddin Choudhary @ Md. Raja v. Assam

[2] Minnie Khadim Ali Kuhn v. State of Maharashtra & anr. (2012)

[3] Arvind Kumar v The State of Himachal Pradesh (2021)

[4] Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471]

[5] Sunny Kapoor v State of Himachal Pradesh [CrMPM 2168 of 2020]

[6] Mahendrabhai Manglabhai Bodat vs State Of Gujarat 2022

[7] Md. Mirmoizuddin Rahaman & Anr. v. State 2023

[8] Mukesh Pal @ Makhan Versus State of Haryana 2022

[9] State of West Bengal v. Rakesh kumar Singh, 2022