Under the NDPS Act getting bail is not an easy thing, whereas, under ordinary criminal cases, bail is the rule and jail is the exception. However, under the NDPS Act, it is reversed. Section 37 of the Act imposes strict requirements for the grant of bail to the accused person.

NDPS Act

The preamble of the Narcotic Drugs and Psychotropic Substance Act, 1985 (“NDPS Act”), states that the Act was enacted to “Consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.” This Act applies to the territories of India along with the citizens of India who are residing outside of India and it also applies to all the people on ships and aircraft who are registered in India.

The relevant provision of the NDPS Act

The offences committed under the Act are treated as cognizable offences i.e. the ones where the accused may be arrested without a warrant. Hence, the offences committed under the Act are considered to be serious and of grave nature. Following are some of the relevant provisions of the Act:

• Section 37 stipulates that persons accused of offences u/s 19 (embezzlement of opium by cultivator)
• Section 24 (external dealings of narcotics drugs and psychotropic substances)
• Section 27A (financing of illicit drug traffic and harbouring offenders) along with offences that involve commercial quantities shall be released on bail, only on two conditions:

1. Where the public prosecutor has got the opportunity to oppose the application for release and
2. The court is satisfied that there are reasonable grounds to believe that the accused is not guilty of the aforementioned offences and that he is not likely to commit such offences while on bail.

Reasonable grounds

The Courts in India have interpreted time and again the concept of ‘reasonable grounds’ as per the provisions of the NDPS Act. In the case of State of Kerala v. Rajesh, Criminal Appeal No(s). 154­157 of 2020, it was held by the Apex Court that the concept “Reasonable Grounds” contemplates substantial probable cause reasons to believe that the accused will not be guilty of any offence under the Act. In this case, it was clarified that the Facts of the case should be clear for removing any difficulty concerning the accused committed the offence.

In another case of Municipal Corporation of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315- The Court held that the expression ‘reasonable ground’ means “by reason”. It shall be decided based on the facts of the case whether the accused person’s act was reasonable or not. The Courts must judiciously pronounce the judgment after due consideration of the facts.

Relationship between NDPS Act and Sec. 437 of CrPC

In the case of Narcotic Control Bureau v. Kishan Lal, AIR 558 1991 SCR (1)– It was held by the Court that if there is an inconsistency with Section 37 of NDPS Act and Sec. 437 of CrPC then the provisions of NDPS Act will prevail.

The Apex Court in the case of Union of India v. Niyazuddin & Anr. (2018) 13 SCC 738- Stated that the court must first satisfy twin conditions stipulated u/s 37 of the NDPS Act along with the parameters provided under the CrPC and other legislations. It further clarified that the overlap between the provisions of the NDPS Act and the CrPC (i.e. Section 37 and Section 437) then the former must prevail.

The Apex Court in the case of Union of India v. Thamisharasi & Ors., JT 1995 (4) SC 253, stated, “The limitation on the power to release on bail in Section 437 Cr. P.C. is like a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the N.D.P.S. An act is like a condition precedent for the exercise of that power, so that, the accused shall not be released on bail unless the Court is satisfied that there are reasonable grounds to believe that he is not guilty. Under Section 437 Cr. P.C., it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 N.D.P.S. Act, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail.” 

Bail if no drugs are found

In the case of Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, Criminal Appeal No.1043 of 2021- It was held by the Division Bench comprising Justices Dr Dhananjaya Y. Chandrachud and B.V. Nagarathna held that the mere absence of contraband possession is not a sufficient ground to grant bail to the accused persons under the NDPS Act offence.

In another case of Union of India v. Rattan Mallik, (2009) 2 SCC 624– The Apex Court clarified that because the heroin was collected from a specifically designed cavity above the cabin of a truck, no contraband was found in the accused’s ‘possession’, hence the bail of an accused was cancelled. It stated that mere contraband possession did not meet the requirements of Section 37(1)(b) and that the High Court had failed to apply its mind.

Confession under the NDPS Act

In the case of Tofan Singh v. State of Tamil Nadu, (2013) 16 SCC 31- Justices Nariman and Navin Sinha of the Supreme Court held that the statements/ confessions made under the NDPS Act cannot be used as confessional statements. It clarified that “held as the basis to convict a person would be “a direct infringement” of constitutional guarantees”.

Conclusion

The NDPS Act comprise of strict provisions regarding granting of bail to the accused persons. That upon perusal of the provisions of the Act, it is evident that ‘reasonable grounds’ must exist indicating the absence of guilt of the accused person.