In general terms, bail can be defined as the temporary release of a person who is awaiting trial, which is usually based on some condition such as a bail bond. In India, a person seeking bail generally goes under the Criminal Procedure Code, 1973. It lays down in detail when a person is eligible for bail.
Generally, bail is seen as a matter of right. That is not the case when a person has committed an offence under the Narcotic Drugs and Psychotropic Substances Act (NDPS), some aspects differ from the Criminal Procedure Code. For instance, every offence under the NDPS Act is cognizable and non-bailable. Meaning thereby, a police officer can arrest a person without any warrant. Because all the offences are termed as non-bailable, it is more difficult in obtaining bail than under the Criminal Procedure Code.
Section 37 of the NDPS Act:
This provision states two things: First, that every offence under this Act is cognizable. Second, there shall be no release of bail when a person has been charged under Section 19, 24, 27A or for offences involving commercial quantity. However, there is no absolute denial of bail. It lays down two conditions, if satisfied, bail can be granted. The first condition is that the Public Prosecutor should be given an opportunity to oppose such bail application and the second condition being that the Court should have reasonable grounds to believe that the accused has not committed the crime and will not commit any crime while being released on bail.
It is further stated that the conditions of bail imposed by this provision is in addition to the conditions mentioned in the Criminal Procedure Code. That is why it is difficult to get bail under NDPS. However, Section 37 only deals with specific offences that I have mentioned above. Bail for all the other offences will be as per the provisions of the Criminal Procedure Code.
In the case of Nazir Ahmed Wani v. State of Jammu Kashmir, the Court observed that a bail under Section 37 can only be granted when there is no prima facie case made out against the accused. In that case, the Court held that ‘framing of charge’ meant that there is a prima facie case against the accused and hence, bail cannot be granted.
One of the questions that arise is: Why the bail provisions under S.37 are more stringent than under the Cr.P.C.? The Supreme Court, in the case of Durand Didier v. Chief Secretary Union Territory of Goa, observed that the activities involved in the narcotic world affect a sizeable section of the public which includes adolescents and students. It further went on to give an example, stating that an accused commits a murder of one or two persons but those dealing in narcotics affect a huge number of people, who most of the time are innocent and vulnerable.
In a recent case of State of Kerala v. Rajesh, the Supreme Court observed that the phrase ‘reasonable grounds’ used in Section 37 means more than just a prima facie grounds. It should contain substantial grounds for believing that the accused did not commit the offence. There should be no liberal approach while granting bail under NDPS.
When the accused has not been presented before the Magistrate within 24 hours:
In the case of SuaiboIbowCassarna v. Union of India, the accused was detained for more than 24 hours and was not presented before the Magistrate. There was no arrest record and the customs officials had violated Section 57 and Section 167 of the Criminal Procedure Code. The Bombay High Court observed that it is a well-settled position that Section 37 of the NDPS Act imposes a bar to Section 439 of the Criminal Procedure Code. However, in this case, it violates Article 21 and 22 of the Constitution which protects against illegal detention. And thus, in cases of illegal detention, the accused is entitled to get bail.
Are the conditions imposed under Section 37(1)(b)(ii) discriminatory in nature?
The Punjab and Haryana High Court, in the case of Ankush Kumar v. State of Punjab, discussed the constitutionality of the bail provisions. Though the High Court did not term these provisions as unconstitutionality, it did point out some critical observations. First, for the Court to decide that ‘the accused did not commit the offence’ at the time of bail went against the principle of presumption of innocence. Second, the Court observed that every citizen has the fundamental right to life and liberty under Article 21 of the Constitution and individual should not be detained until the completion of his/her trial. Third, when the Court grants bail on the ground there is no prima facie case made out against the accused, it is essentially giving grounds to the accused to quash the charge.
If a person is accused of an offence under the NDPS, the procedure of bail will be as prescribed under Section 37 of the NDPS and if the offences are other than those prescribed under Section 37, provisions of Cr.P.C. will follow. Under Section 37, bail can be obtained only under three possible circumstances: First, if the Public Prosecutor does not oppose such bail, second, there are reasons to believe that the accused has not committed the offence and third, the accused has been illegally detained and there is a violation of Article 21 of the Constitution.
1998 CriLJ 3176.
SukhleenSahuja, Analysis of Bail provisions under CrPC, SC/ST Act, NDPS and UAPA, Lawlex, (June 3, 2020) available at: https://lawlex.org/lex-pedia/analysis-of-bail-provisions-under-sc-st-act-ndps-and-uapa/22224.
 (1990) 1 SCC 95).
Criminal Appeal No. 154-157 of 2020, available at: https://main.sci.gov.in/supremecourt/2019/24163/24163_2019_16_1501_19743_Judgement_24-Jan-2020.pdf.
1995 (80) ELT 762 Bom.
2018 SCC Online P&H 1259.
This article is authored by Priyanshi Joshi, Fifth-Year, B.A. LL.B student at Institute of Law, Nirma University.
Also Read – Bail – Being Discriminative In It’s Nature
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