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The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), is a law enacted by the Parliament that prohibits individuals from engaging in the production, manufacturing, cultivation, possession, sale, purchase, transport, storage, or consumption of any narcotic drugs or psychotropic substances. The NDPS Act has been 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. 

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

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

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.”

Thus, According to Section 37, bail can only be granted to a person accused of committing an offense under the Act if the prosecution has been given the opportunity to oppose the application and the court is convinced that there are valid reasons to believe the accused is innocent. If either of these conditions is not met, bail cannot be granted.

Landmark Cases:

In the case of State of Kerala and Ors. v. Rajesh and Ors. Criminal Appeal No(s). 154­157 of 2020, the accused person was arrested for carrying hashish oil by the circle inspector of excise. The accused requested bail, but the trial court denied the request, stating that there was prima facie evidence of guilt and therefore, bail could not be granted under Section 37 of the NDPS Act. The High Court reversed this decision and granted bail to the accused without considering Section 37 of the NDPS Act. The Supreme Court overturned the High Court's decision, stating that the single-judge bench of the High Court was wrong. The Supreme Court observed "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. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

In the case of Union of India v. Thamisharasi and Ors, Appeal (crl.) 611-612 of 1995, The Supreme Court observed that the provisions of Section 167 of the Code of Criminal Procedure, 1973 (CrPC) and Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) are not in conflict with each other. The Court held that the restrictions outlined in Section 37 of the NDPS Act do not apply when bail is automatically granted under Section 167 of the CrPC, meaning that if a complaint is not filed within the prescribed timeframe, the accused is eligible for bail. The case also clarified the difference between Section 143 of the CrPC and Section 37 of the NDPS Act, stating that the latter is a stricter provision that places the burden of proof on the accused to demonstrate their innocence, while under the CrPC, the burden of proof is on the prosecutor to show that the accused is guilty and therefore should not be granted bail.

In the case of The State (GNCT of Delhi) v. Lokesh Chadha, Criminal Appeal No 257 of 2021, parcels containing prohibited drugs were discovered in an office and the respondent was arrested. The trial Court found the defendant guilty, but the High Court later acquitted him. The matter was brought to the Supreme Court, which ruled that there must be strong and compelling reasons for granting bail, and in this case, there was no such reason. As a result, the Supreme Court reversed the decision of the High Court. 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. 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.”

In Union of India v. Shiva Shankar Kesari, Appeal (crl.) 1223 of 2007, the Supreme Court tried to lay down an approach for granting bail under Section 37 of the NDPS Act. The Court emphasized that it should not simply rely on records that state that the accused is not guilty, but should instead look for reasonable grounds that suggest the accused's innocence before deciding to grant bail. "The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'. 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 Apex Court observed.

Grounds for Cancellation of Bail

Section 37 of the NDPS Act would be applicable when the question of release on bail is considered. However, once an accused person has been granted bail, the regular criminal law will be applicable and bail may only be revoked on the following grounds:

I.        Where the accused misuses his liberty by indulging in similar criminal activity;

II.      Interferes with the course of investigation;

III.    Attempts to tamper with evidence or witnesses;

IV.   Likelihood of fleeing, etc.

References:

https://www.legalserviceindia.com/legal/article-3664-an-overview-of-the-ndps-act-with-provisions-regarding-bail-and-confession.html

https://www.barandbench.com/columns/bail-under-the-ndps-act-through-the-lens-of-the-aryan-khan-case

https://blog.ipleaders.in/interpretation-of-section-37-of-the-narcotic-drugs-and-psychotropic-substances-act-1985/

https://www.latestlaws.com/case-analysis/sc-no-bail-can-be-granted-in-ndps-act-cases-unless-credible-and-plausible-grounds-of-innocence-exists-read-order-187485