Introduction:

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

However, during the passage of time and the development in the field of illicit drugs traffic and drug abuse, many deficiencies in the existing laws have come to notice, in particular with provisions regarding Bail (sec.37).

Section 37 of NDPS Act:

Section 37 of the NDPS Act lays down the provisions for offences under this act. Offences under this Act are cognizable and non-bailable. 

37. Offences to be cognizable and non-bailable. — (1) 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 1[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 sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of

A perusal of Sec. 37 of NDPS Act shows that it starts with a non-obstante clause stating that, Notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on Bail unless the conditions contained therein were satisfied. Both the grounds must be satisfied before granting Bail i.e.

• The Public Prosecutor must be given an opportunity to oppose the application for such release, and
• 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.

When a different procedure has been established by a statute, the Criminal Procedure Code is not applicable. The broad terms of bail under the CrPC will not be applicable since the Act specifies a separate provision for bail. The Act was passed with the intention of establishing strict rules for the management and regulation of NDPS operations.

However, the scope of section 37  has limited applicability to small and intermediate quantities. To understand small, intermediate and commercial quantities, It is important to understand the meaning of such terms.

According to Section 2 of NDPS Act:

‘Commercial quantity’, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.

‘Small quantity’, in relation to Narcotic Drugs and Psychotropic Substances, means  any  quantity lesser than the quantity specified by the central government by notification in the Official Gazette.

Intermediate Quantity: that although the terminology “Intermediate Quantity”, is nowhere defined in the Act in definition part, but the terminology used is “lesser than commercial quantity but greater than small quantity”, when it comes to stipulating the punishment for the offences.

Scope of Bail When Commercial Quantity is Involved:

The Supreme Court in the recent case of Union of India v. Ajay Kumar Singh, (2023 SCC OnLine SC 346) observed that 

“No person involved in trade of commercial quantities of narcotics is liable to be released on bail, unless there are satisfactory and reasonable grounds for believing that such person is not guilty of the said offence and is not likely to commit any offence while on bail. The Bench said that the prima facie guilt of the accused was not recorded while granting bail, and the High Court had manifestly erred in enlarging the accused on bail, knowing the quantity of “ganja” recovered is admittedly of commercial quantity.”

The Hon’ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:

“The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.

It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.

But the Court has not to consider the matter as if it is pronouncing a judgement of acquittal and recording a finding of not guilty.

Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”

Therefore, even in commercial quantity if the courts are satisfied of the reasonable ground for believing that the accused is not guilty of such offences ( Non compliance of mandatory provisions of the NDPS Act i.e. Section 42 or Section 50, disclosure statement of co-accused or accused is not corroborated by any independent incriminating evidence etc) along with the condition that the accused will not likely to commit offence if he was granted bail (keeping into consideration the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence), the courts can grant regular bail even in commercial quantity cases.

Scope of Bail When Small and Intermediate Quantities are Involved:

The Hon’ble High Court of Jammu & Kashmir in the case of Mushtaq Ahmad Bujard vs. UT of J and K (14.03.2022 – JKHC)MANU/JK/0161/2022 observed as under:

15. It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case. A Coordinate Bench of this Court, while discussing the principles to be followed in a case where intermediary quantity of contraband was recovered from the accused, has, in the case of Mehraj-ud-Din Nadroo and others Vs. State of J&K (BA No. 74/2018 decided on 07.07.2018), observed as under:

“9. The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences. Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses, if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

10. The word “judicial discretion” has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.” Even so, it is useful to notice the tart terms of Lord Camden that “the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable.

The Hon’ble High Court of Himachal Pradesh in the case of Arvind Kumar vs. State of Himachal Pradesh (04.06.2021) Cr.MP(M) No. 990 of 2021 observed as under:

8. Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon’ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 15), this Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

Conclusion

Section 37 of the NDPS Act works as a deterrent when it comes to offences related to drugs. It is necessary because it leads to the creation of fear among people that if they commit a crime under this Act, they will not be granted bail. On the other hand, this provision sometimes becomes draconian as innocent people get jailed. Thus, the judiciary needs to adopt a cautionary principle to ensure justice. 

Written by Advocate Husain Trivedi