By Dr Vinod Surana, Managing Partner & CEO, Surana & Surana International Attorneys

The routine rejection of bail under the stringent provisions of the NDPS Act has brought many provisions under heavy scrutiny.  The most recent instance of repeated rejection of bail under NDPS Act was the case of Aryan Khan.  Aryan Khan’s bail was repeatedly rejected as the stringent requirement of ‘reasonable grounds for believing that he is not guilty’ were not established. Where under ordinary criminal cases, bail is the norm and jail is the exception, under NDPS Act, the reverse normally occurs. Section 37 of the NDPS Act imposes strict requirements for the granting of bail. Through this article, we shall analyse the bail provisions under the NDPS Act and how the judiciary over the years has treated grants of bail in narcotics-related cases.

What is the NDPS Act?

 To deal with issues of selling/consuming/possessing/distributing illicit drugs the Government of India enacted The Narcotic Drugs and Psychotropic Substance Act, 1985 (“NDPS Act”).  The Preamble of the Act states that, the Act was enacted with an object 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.” The Act not only applies to the Indian territory but also to the Indian citizens residing outside of India and all the people on ships and aircraft which are registered in India.

Analysis of Bail provisions under NDPS Act

Section 37 of the NDPS Act deals with cognizable and non-bailable offences. Section 37 states that:

“Notwithstanding anything contained in the Code of Criminal Procedure, 1973

 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.”

The first thing that catches our attention is the fact that the offences under NDPS Act are treated as cognizable offences. A cognizable offence is one where the accused may be arrested without a warrant. This shows that the offences under the NDPS Act are considered to be grave and serious in nature. 

Further, Section 37 stipulates that persons accused of offences under Section 19 (embezzlement of opium by cultivator), Section 24 (external dealings of narcotics drugs and psychotropic substances) and 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: a) Where the public prosecutor has got the opportunity to oppose the application for release and b) 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. 

What becomes pertinent from a bare perusal of Section 37 is that the guilt need not be proved beyond doubt, but reasonable grounds prima facie creating the belief that the accused is not guilty are required to be established. 

The term “Reasonable Grounds” has a very wider connotation. Courts have consistently tried to interpret the term “Reasonable Grounds”. In State of Kerala v. Rajesh The Supreme Court held that the term “Reasonable Grounds” contemplates substantial probable cause for believing that the accused is/or will not be guilty of any offence mentioned in the Act. The Facts and circumstances of the case should be clear so as to remove any difficulty regarding the accused committing the crime. 

In Municipal Corporation of Greater Mumbai v. Kamla Mills Ltd. It was held that “The term “Reasonable ground” signifies “in accordance with reason”. Ultimately it is going to be the question of facts on deciding whether the act of the accused is reasonable or not. The Courts have to judiciously pronounce the verdict after giving due consideration to the facts. 

In Shiv Shankar Kesari, the court, while interpreting the term “reasonable” stated that: 

“Stroud’s Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy."

This shows that the interpretation of the term “Reasonable Grounds” depends upon the facts and circumstances of each case and what may be reasonable in one fact situation, may not be reasonable in another. 

Another aspect of the bail provisions under the NDPS Act is its relationship with the bail provisions stipulated under Section 437 of the Code of Criminal Procedure, 1973 (CrPc). In Narcotic Control Bureau v. Kishan Lal The court held that “In case of Inconsistency, Section 37 of NDPS Act will prevail over CrPC, 1973”. The term “Notwithstanding anything” implies the non-obstante clause of the Section.  The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless both the conditions are satisfied. Recently, the Supreme Court in Union of India v. Niyazuddin & Anr held that it is mandatory for the court to first satisfy two conditions stipulated under section 37 of the Act in addition to the parameters given under CrPC and other legislations. However, the overlap between Section 437 and Section 37 is on a slippery slope as many contrasting judgments have also been rendered. For instance, the Kerala High Court in the decision of Matthew v. State of Kerala, held that even though Section 37 mentions the word non-bailable, that does not mean that all offences under NDPS Act are non-bailable. The Supreme Court in the decision of Union of India v. Thamisharasi & Ors. had stated: 

“The limitation on the power to release on bail in Section 437 Cr. P.C. is in the nature of 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. Act is in the nature of 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.” 

This shows that Section 37 puts the onus on the accused and hence is more stringent in nature than ordinary bail provisions under the CrPC. 

Once the bail is granted under Section 37, the CrPc springs into action. The cancellation of the bail may be requested on the ordinary grounds on which bail is normally cancelled such as: accused misusing his liberty, interfering with the investigation, tampering of evidence etc. 

Supreme Court’s Observations in Cases for Bail For NDPS

Whether bail would be granted if no drugs found in possession of the accused?

The Supreme Court has ruled that the Absence of Recovery of Contraband (NDPS substance) from Possession of Accused by Itself is Not a Ground to Grant Bail. In the Aryan Khan case, one of the major arguments was that no drug was found in the possession of the accused and yet he was repeatedly being denied bail. 

In Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan, the Division Bench of Justice Dr Dhananjaya Y. Chandrachud and Justice B.V. Nagarathna held that the mere absence of contraband possession is insufficient to grant bail to the accused under the NDPS Act offence. 

In Madan Lal and Another v. State of Himachal Pradesh, the Court held that whether there was conscious possession must be determined in light of the facts and circumstances of the case. 

 In Union of India v. Rattan Mallik, a two-judge bench of the Supreme Court had concluded that because the contraband (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. The Court stated that simply making a finding of contraband possession did not meet the requirements of Section 37(1)(b), and that the High Court had failed to apply its mind.

Admissibility of Confessions made to NDPS

In 2013, the long standing question of admissibility of confessions made to NDPS was resolved by the Supreme Court Court in ‘Tofan Singh v. State of Tamil Nadu’, Justices Nariman and Navin Sinha ruled that such statements under the NDPS Act cannot be used as confessional statements because if “held as the basis to convict a person would be “a direct infringement” of constitutional guarantees”. 

Possible Misuse of NDPS by Governments

The fact that the NDPS is a stringent law with a low chance of bail, its misuse in the hands of government authorities cannot be ruled out. This misuse has been witnessed in multiple cases.  First of the series of decisions where possible misuse of NDPS was suspected was that of Serina Bhanu, wherein despite the proclamation of innocence and founding of no proof against the accused, she was tortured and hounded by the authorities. 

In the case of Aryan Khan, despite the fact that no drugs were found in his possession, he was charged under Section 27 A of the Act, which punishes "financing illicit traffic and harbouring offenders," based on phone conversations that supposedly imply he "bought drugs." Later on these phone conversations were rendered inadmissible as evidence. 

It is apparent that deterrence and rehabilitation can only be achieved through fundamental legislative changes rather than headline-grabbing arrests

Conclusion

Upon an analysis of the bail provisions under the NDPS Act, we deduce that reasonable grounds indicating towards the absence of guilt need to be established by the accused. A beyond all reasonable doubt proof is not required at this stage. This is at variance with the ordinary bail provisions under CrPc where reasonable grounds related to guilt need to be established. In the former, the onus shifts to the accused while in the latter the onus remains on the prosecution. The court at this stage is tasked to reasonably satisfy itself that the accused is not guilty. The bail provisions under the NDPS Act are hence, more stringent and thus, we see that it is difficult to obtain bail under the NDPS Act. However, the degree of proof, admissibility of evidence and the degree of satisfaction is still a very subjective ground as far as bail under NDPS Act is concerned. What metrics define `not guilty’ still remain unclear. Guidelines related to these should be laid down and more clear contours regarding granting of bail under the NDPS Act should be framed.