How Bail is Granted under the NDPS Act?

 

INTRODUCTION

 

Today, we will discuss the case of Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891, wherein the Hon’ble Supreme Court discussed Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “NDPS”), that talks about the grounds on which bail could be granted to accused persons under the NDPS Act.

 

LEGAL PROVISION INVOLVED

 

For the sake of clarity, Section 37 is reproduced hereinbelow: -

 

“37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974) -

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless -

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, 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.

(2) The limitations on granting of bail specified in clause (b) of subsection (1) are in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

 

INTERPRETATION OF SECTION 37

 

In the present case, the Supreme Court interpreted Section 37 and provided the following observations: -

 

a. Section 37 (1) is a non-obstante clause and imposes conditions for grant of bail to accused persons under the NDPS Act. As per Section 37 (2), such conditions are in addition to the conditions for grant of bail that are already provided in the Code of Criminal Procedure, 1973 (in short, “CrPC”). Thus, the conditions imposed under Section 37 (1) are also a restriction on the powers of the Court while considering grant of bail.

 

b. The first condition is that the State/Public Prosecutor must be given an opportunity to oppose the Bail Application moved by the accused person.

 

c. The second condition is that whenever a Bail Application is opposed by the State/Public Prosecutor, then the Court ought to satisfy itself 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.”

 

d. The Court also expounded on the meaning of the expression “reasonable grounds” provided in Section 37 (1). In this regard, the Court cited the case of Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, wherein it was stated that: -

 

“The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.”

 

e. Even in the case of State of Kerala v. Rajesh, (2020) 12 SCC 122, it was observed that “the reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.”

 

f. In view of the afore-stated judicial pronouncements, the Hon’ble Supreme Court was of the view that the expression “reasonable grounds” means that credible and plausible grounds must exist for the Court to believe that the accused person is not guilty of the alleged offence, and at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail.”

 

g. The Court also noted that though the confessional statement under Section 67 of the NDPS Act cannot be relied upon since the same is inadmissible in the trial of any offence under the NDPS Act, yet if there are other pieces of cogent evidence existing against the accused, the same could be considered to justify whether reasonable grounds exist or not.

 

CONCLUDING REMARKS

 

In this case, the Supreme Court has beautifully summarized the mandate of Section 37 of the NDPS Act and the parameters for consideration of bail; however, the fact remains that what is a reasonable ground to believe that an accused is guilty or not, would depend upon the facts and circumstances of each case. In my own view, it is akin to conducting a mini trial at the stage of grant of bail. Though the Hon’ble Supreme Court has said that the Courts are not required to weigh the evidence for arriving at a finding regarding the guilt of the accused, yet this is precisely the exercise that Section 37 mandates. There has to be an application of mind by the judge as to the merits of the case based on the available material on record to decide the reasonable grounds that would ascertain that the accused is not guilty. The restriction imposed vide Section 37 of the NDPS Act seems to be not on the judge rather on the accused. At the threshold stage itself, the accused must be able to show that he is not guilty, else his personal liberty would be thwarted.

 

Further, the term “reasonable grounds” is of wide amplitude. Even if an accused presents some evidence that shows that he is not guilty, yet it is often seen that the prosecution has the upper hand when it comes to preliminary stages of a criminal proceedings. At the stage of the bail or of framing of charges, there is limited material available on record and more often than not such material has proven to be grossly insufficient to adjudge the guilt of an accused. Thus, Section 37 only complicates the matter in this regard.

 

It is agreed that NDPS Act is a special law, and the problem of drugs has been plaguing our society, but at the same time, it should not be forgotten that there are other heinous crimes too like Murder, Robbery etc. in the Indian Penal Code, for which conditions like the one imposed in Section 37 are not present. The legislative intent behind enactment of Section 37 seems to be that a person who is indulged in crimes relating to NDPS should not be left scot-free, but Section 37 has also the potential to be used as a tool of oppression at the behest of the prosecution agencies. They can plant flimsy evidence to arrest a person and keep him or her behind the bars for years, and later on, when the frailty of the planted evidence would emerge during the course of the trial, then only it would be proved that the accused is not guilty, and he would be set free.

 

It is also true that in today’s era, the concept of innocent until proven guilty has lost its significance. In fact, the situation is the other way round. Provisions like Section 37 of the NDPS Act make sure that even the Courts hands are tied when it comes to grant of bail to an accused person.