Blog Details

Bail is a rule, jail is an exception. This legal principle was established by the Supreme Court while enforcing the right to life and liberty enshrined in Article 21 of the Constitution. Section 439 of the Code of Criminal Procedure (CrPC) provides courts with the authority to grant bail to an individual who has been accused of a crime. However, when it comes to drug-related cases, it appears that this principle is reversed in legal terms.

The Narcotic Drugs and Psychotropic Substances Act, 1985 (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. The act prohibits the production, manufacturing, cultivation, possession, sale, transportation, purchasing and consumption of any Narcotic Drugs and Psychotropic Substances.

Section 37 of the NDPS Act deals with the granting of bail to an accused arrested in a drugs case. It states-

“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.”

Section 37 of the Act outlines the requirements for granting bail to an individual who has been accused of an offense under the legislation. It is worth noting that this section is formulated in a negative manner, specifying that bail will only be granted if two conditions are met. The first condition necessitates that the prosecution be given a chance to contest the bail application, while the second condition demands that the court be convinced that there are rational grounds to believe that the accused did not commit the offense. If either of these two criteria is not satisfied, then bail will not be granted.

The Supreme Court In the case of Union of India v. Thamisharasi & Ors. Appeal (crl.) 611-612 of 1995, observed: 

“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.” 

Mens Rea or the Criminal Intention:

Section 35 of the NDPS Act lays out the principle of “presumption of culpable mental state”. "In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution." the Section states.

Further, Section 54 states that if an individual is unable to provide a satisfactory explanation for possessing any narcotic drug, psychotropic substance, or any other object that may incriminate them, it will be presumed that he has committed an offense under the Act.

Recent Cases of Bail under NDPS Act:

·       State of Kerala v. Rajesh [AIR 2020 SC 721]

In this case, the Supreme Court ruled that the exercise of the power to grant bail would be subject not only to the limitations set forth in Section 439 of the CrPC, but also to the limitations set forth in Section 37 of the NDPS Act. Section 37 of the NDPS Act states that no one can be expanded on bail under the Act unless the prosecution is given the opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for the accused's innocence.

·       Gurdev Singh v. State of Punjab [Criminal Appeal No. 375 of 2021]

The Hon'ble Supreme Court observed in this case that those dealing in narcotic drugs play an instrumental role in the deaths of young, innocent people who are most vulnerable to drug addiction. As a result, in the case of the NDPS Act, the accused's poverty or the fact that he was the sole earner in his family could not be considered when determining his sentence or punishment. However, the amount of narcotic substance recovered would be a relevant factor in imposing a sentence of more than ten years under Section 32B of the NDPS Act.

·       Boota Singh v. State of Haryana [Criminal Appeal No. 421 of 2021]

In this case, the Supreme Court held that a private vehicle did not fall under the definition of "public place" as defined in Section 43 of the NDPS Act. The drugs were recovered from the accused in this case while they were in a jeep in a public place.

·       Union of India through Narcotics Control Bureau, Lucknow v. Md. Nawaz Khan [Criminal Appeal No. 1043 of 2021]

In this case, the Supreme Court held that bail could be granted to an accused under the NDPS Act only if there were reasonable grounds to believe that the accused was innocent and that he was unlikely to commit any offence while on bail.

References:

https://www.indiatoday.in/india/story/aryan-khan-drugs-case-why-it-is-difficult-to-get-bail-under-ndps-act-1867438-2021-10-21

https://www.lawyersclubindia.com/articles/ndps-act-important-sections-and-landmark-judgments-14894.asp

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