As the name suggests the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as NDPS Act deals with the drugs since it provides stringent provisions for the control of narcotic drugs and psychotropic substances. This piece of legislation contains 83 sections and six chapters. As the cases of narcotic drugs are rising, the Courts are taking a rigid stand while dealing with the cases under the NDPS Act despite the existence of legislation itself.
In recent times, Section 37 of the NDPS Act is in the public eye because of stern observations of the courts while dealing with the bail matters under the said Act. Therefore, let’s explore this Section more and analyse its provisions.
What is Section 37 of the NDPS Act?
Section 37 of the NDPS Act provides the classification of the offences under the Act and lays down the conditions for granting bail. The bare language of the Section is reproduced below: –
- Offences to be cognizable and non-bailable –
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(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.
(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 bail.
From the perusal of the aforesaid bare language, the Section can be summarized as below: –
- Primarily, offences under the NDPS Act are cognizable. Illustratively, the cognizable offences are those where the police can arrest without a warrant. Therefore, it can be implicit that the offences under the Act are treated as serious in nature.
- Secondarily, usually, the offences are non-bailable; hence grant of bail is subject to the conditions imposed under the Code of Criminal Procedure hereinafter referred to as Cr.P.C. and Section 37 of the NDPS Act itself. Since Section 37 (1) (b) of the Act states that a person accused of Section 19, 24, 27A of Act and other offences where commercial quantity is involved, shall not be released on bail unless specified conditions are not satisfied. The first condition is that the prosecution must be given an opportunity to oppose the bail and second is that the court must be satisfied that the accused shall be released since there are some reasonable grounds to believe that the person is not guilty of such offence and he will not commit any offence after getting released on bail. Notably, these two conditions are not alternative rather these are cumulative.
- Lastly, apart from the bail conditions provided under the Cr.P.C. the conditions under Section 37 of the NDPS Act are treated as additional ones.
Judicial interpretation of Section 37 of the NDPS Act: –
In the case of the State of Kerala and Others vs Rajesh and Others, Criminal Appeal No. 154157 of 2020, the top court while interpreting the term “reasonable grounds” used in Section 37 of the Act, held that the term “reasonable grounds” mean 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 the 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 Union of India vs Rattan Mallik @ Habul Criminal Appeal No. 137 of 2009, the Hon’ble Supreme Court held that we may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of not guilty. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a position finding as to whether or not the accused has committed an offence under the NDPS Act. What is to be seen whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.
In Union of India vs Shiv Shanker Kesari, (2007) 7 SCC 798, the Apex Court while discussing the conditions enshrined under Section 37 of the NDPS Act held that as the provision itself provides that no person shall be granted bail unless the two conditions are satisfied. They are the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. The expression used in Section 37(1)(b)(ii) is “reasonable grounds.” The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to the existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence charged. 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.”
The Hon’ble Punjab and Haryana High Court in case of Ankush Kumar @ Sonu vs State of Punjab, 2018 (4) RCR (Criminal) 84, while entertaining the bail application for regular bail, observed that the second part of Section 37(i) (b) (ii) requires a humanly impossible act on the part of the Court. Since the second part of Section 37(1)(b)(ii) requires satisfaction of the court, which is impossible by extension of any human logic, therefore, this is an irrational requirement. There is no rational way for a court to record its satisfaction or to arrive at this satisfaction qua possible future conduct and mental state of an accused. Any record relating only to the past conduct of a person cannot be reasonably made a basis of future reasonable prediction, as against the guess work, regarding the possible mental state or possible conduct of that person.
The perusal of the conditions imposed under Section 37 of the NDPS Act gives a picture of some irrational approach that is certainly, a threat to the personal liberty of an accused person. Undeniably, strict legal provisions are required to eliminate the menace of narcotics drugs in society, but at the same time, the laws should not be such that they infringe the fundamental rights of individuals.
Therefore, there is a need for some judicial pronouncements as cited above, which could be proved a step in the positive direction. Besides this, bringing legislative changes regarding the imposition of the conditions of Section 37 of the NDPS Act is a much-needed step in the present times and is positively a way forward in the legal area.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali