The NDPS Act 1985 - Bail and it's Underlying Principles (Imp Case Laws)

Alcohol and drugs are used to obtain relief from pain and misery and to attain a state of forgetfulness and with the technological advancements, western culture setting in and many other factors, this attainment seems to have touched almost 70% population in India (Specially students).

Narcotics, Drugs and Psychotropic Substances Act, 1985 was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances.

To strike a balance between law offender and lawful persons, bail provisions are incorporated but were made very stringent and if any person is convicted for possessing or selling contraband of commercial quantity then he had to face minimum sentence of ten years.

The whole object of the arrest and detention of an accused is, obviously, to secure his appearance and to have him abide by the sentence of law. That being so, except where a statute specifically requires, the principles which should guide the courts in the exercise of their discretion to grant bail or not is the probability of the accused appearing to take the trial, and not his supposed guilt or innocence. Considerations such as the nature of indictment, the nature of evidence and the severity of punishment awardable, have their relevance only because they effect the livelihood of the prisoners failing to appear for his trial.

Though Section 37 of the NDPS Act which lays down two limitations;

One, that the court is prima facie of the view that the accused is not guilty of the offence and;

Second, that he is not likely to commit any offence while on bail but at the stage of prayer for granting bail it is open for the accused to rely upon the statutory violation or procedural irregularities of the prosecution to contend the prejudice caused to him.

In case reported in Ashkar v. State of Kerala, 2019 SCC OnLine Ker 1406 Ker HC. In NDPS case, Bail application of accused was allowed as he did not possess ‘commercial quantity’ of psychotropic substance.

In case Sukhdev Singh Vs. U. T. Chandigarh 1986 Cr.L.J. 1757 (P&H) in which the Court explain the language of the section 37 (1) (b) that the court must adopt a negative attitude towards bail but turn positive firstly if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the Act and secondly that he is not likely to commit any offence while on bail. Both these test must be satisfied before bail can be granted.

Recently, Apex Court, the bench comprising Justices L. Nageswara Rao and Deepak Gupta in Sujit Tiwari vs State of Gujarat, observed that the case of the appellant herein is totally different from the other accused. The court noted that the provisions of Section 37 of the NDPS Act lays down two limitations; one, that the court is prima facie of the view that the appellant is not guilty of the offence and secondly, that he is not likely to commit any offence while on bail.

In case reported VikasSagar v. State of Himachal Pradesh, 2019 SCC OnLine HP 1524 decided by Himachal Pradesh High Court by ChanderBhusanBarowalia, J. granted bail to a 22 year old student for an offence committed under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. As per the averments made by him, the petitioner claimed to be innocent and that he was falsely implicated for the case.

In short, the relevant considerations that might be taken into consideration are the background, the general character and the records available with the police, etc. and bail could be granted by Court of law depending upon the facts and circumstances of the case. Nature of the offence and the gravity thereof and also the antecedents of the accused are the relevant consideration for the court at the time of disposing of the bail application. Even otherwise, grant of bail is a rule and its rejection is an exception, also that the accused is innocent till guilt is proved. These cardinal principles of criminal law have to be borne in mind while considering concession of bail.