Introduction

Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS) contains stringent requirements before granting a bail application. A bail application can be allowed only if there are reasonable grounds to believe that the accused is not guilty of an offence under the NDPS Act and that the person released on bail would not commit any offense. Honourable Justice Dr Dhananjaya Y Chandrachud passed the instant judgment in the case of the State (GNCT of Delhi) Narcotics Control Bureau V Lokesh Chadha [Cr. Appeal No. 257 of 2021]

Reasons to believe

The Court observed that “Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

It was further clarified by the Court that where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act.

Union of India v. Md. Nawaz Khan, LL 2021 SC 489

The Apex Court observed that the bail cannot be granted under the NDPS to the accused merely on a finding of the absence of possession of the contraband on the person of the accused. The bench comprising of Justices DY Chandrachud and BV Nagarathna observed, that such a finding does not absolve the court of the level of scrutiny required u/s 37(1)(b)(ii) of the NDPS Act.

It was reiterated by the Court that while granting the bail the test must apply is whether there are reasonable grounds to believe that the offense has not been committed by the accused or whether the accused is likely to commit an offence when released on bail.

The High Court had granted bail to the accused person after noticing that a search was conducted in the presence of a gazetted officer as per the provisions of Sec. 50 of the NDPS Act however, nothing objectionable was recovered in the course of the personal search of the accused. However, it was on search of the car revealed two polythene packets hidden under the place where the wiper is connected to the front bonnet of the car.

U/s 37(1)(b)(ii) of the NDPS Act, the limitations on the grant of bail for offences punishable u/s 19, 24 or 27A and also for offences involving a commercial quantity are :

• The Prosecutor must be given an opportunity to oppose the application for bail; and
• There must exist ‘reasonable grounds to believe’ that:
  • The person is not guilty of such an offence; and
  • He is not likely to commit any offence while on bail.

Grounds for cancellation of bail

The provisions of Section 37 of the NDPS Act would apply when the question of release on bail is considered. Once the accused person is released on bail, the criminal law will come into role and the bail would be open for cancellation on the following grounds:

1. Where the accused misuses his liberty by indulging in similar criminal activity;
2. Interferes with the course of investigation;

• Attempts to tamper with evidence or witnesses;

1. Likelihood of fleeing, etc.

It was noted by the Apex Court that the High Court overlooked crucial requirements and glossed over the circumstances which were material to the issue as to whether a case for the grant of bail was established.

It was observed by the bench that “As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the ‘possession’ of the accused.”

The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-application of mind by the High Court. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.

The court held that the knowledge of possession of contraband must be gleaned from the facts and circumstances of each case. It was further clarified by the Court that the standard of conscious possession would be different in a public transport vehicle in comparison to a private vehicle having fewer persons.

The Apex Court stated that “In Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.” The judgment of the High Court was set aside by the Supreme Court.