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Understanding Sec. 37 of the NDPS Act & powers of High Court to grant Bail in NDPS Cases

Understanding Sec. 37 of the NDPS Act & powers of High Court to grant Bail in NDPS Cases

Narcotic Drugs

Understanding Sec. 37 of the NDPS Act & powers of High Court to grant Bail in NDPS Cases:

Drugs-related NDPS cases are dealt under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The law makes cultivation, consumption, abating consumption, sale or transaction of narcotic drugs and psychotropic substances listed under the NDPS Act as crime.  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.

  1. The Public Prosecutor must be given an opportunity to oppose the application for such release, and
  2. 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.

NDPS Act is a special Act and Criminal Procedure Code is not applicable where any different procedure has been prescribed by any law. Since the Act prescribes a separate provision for Bail, the general provisions of Bail under the CrPC will not be applicable. The Act has been enacted with a view to make stringent provisions for the control and regulation of the operations relating to NDPS.

That being the underlying object of the Act, Sec. 37 of the Act, in negative terms limits the scope of the applicability of the provisions of the CrPC regarding bail and it cannot be held that the High Court’s power to grant Bail under Sec. 439 of the CrPC are not subject to limitations mentioned under Sec. 37 of the Act. The Non-obstante clause with which the section begins is to be given its due meaning and it clearly intends to restrict the powers to grant bail.

Release under NDPS Act is based on conditions mentioned in Sec. 37 of the Act apart from other factors, including the paramount consideration like in case of release whether the accused will flee from justice or will he make an attempt to tamper with the prosecution evidence. The discretionary power conferred under Sec. 439 of CrPC is subject to the limitations imposed under Sec. 37 of the NDPS Act.

Considerations for granting bail under NDPS Act:

Before granting bail, the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of the fact, the police report have to be closely examined before recording a finding as to whether the conditions given under the said section, are fulfilled or not.

Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are to be exercised with embargo and conditions as laid down under Sec. 37 of the Act. Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a negative approach and to decline bail but when the legislature have required the court to record a finding of its satisfaction of certain facts, the duty cast on the court is in positive terms. Grant of Bail is a rule and its rejection is an exception.

After the judgment of Hon’ble Supreme Court in the case of Lokesh Chadha vs State, the grant of bail especially suspension of sentence after conviction has been limited to the merits of the case meaning thereby if the accused is able to show any merit in his case pointing out towards the satisfaction of first parameter of Sec 37 of NDPS Act then bail can be granted in cases involving commercial quantities also.

In once such case, we successfully obtained the bail granted to the accused in the case of Nishan Singh vs State of Punjab wherein he was sentenced to 10 years.  The complete order is below:-



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