Bombay HC on whether offences under NDPS Act are non-bailable: Read full text – Hindustan Times

The Bombay high court on Wednesday granted bail to actor Rhea Chakraborty whoc was arrested by the Narcotics Control Bureau (NCB) in connection with a drugs case linked to the death of Sushant Singh Rajput.

But the court did not accept the argument put forward by Chakraborty’s lawyer Satish Maneshinde that the offences involving small quantities of contraband are bailable under the NDPS Act.

In a lengthy judgement, Justice Sarang V Kotwal delved deeper into the issue and highlighted two important judgements of the Supreme Court.

“This issue is important and, therefore, I am examining this issue in detail. In support of his contention that the offences involving small quantities are bailable, Mr Maneshinde relied on a judgment of a single judge of this court in the case of Stefan Mueller vs State of Maharashtra. In this case, it was held that the offences involving small quantities of contraband were bailable offences,” Justice Kotwal observed.

“The language of Section 37 itself mentions that every offence punishable under this Act shall be cognizable, but, there is no such similar sentence mentioning that every offence punishable under NDPS Act shall be non-bailable,” the judge further said.

Here is the observation made by Justice Kotwal in deciding Chakraborty’s bail (from the court order):

Since this is an application for bail in respect of offences punishable under the NDPS Act, the provisions of that Act are required to be considered carefully. The bail provisions under the NDPS Act are mentioned under Section 37 of that Act. Section 37 reads thus:

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.”

As per requirements of this Section, the Court has to give opportunity to the Public Prosecutor to oppose the application for such relief. Such opportunity is given in the present case as I have heard learned ASG extensively. He has opposed this application. The second requirement is that, the Court should be satisfied about the two conditions. There should be reasonable grounds for believing that the Applicant is not guilty of such offence and the Applicant is not likely to commit any offence while on bail. Therefore, the Court will have to consider whether these two conditions are satisfied. However, these requirements are applicable only where the rigours of Section 37 mentioned in Clause (b) of Sub-Section (1) of Section 37 are applicable in the case. This view is consistently taken by the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Union of India Vs. Rattan Mallik alias Habul2 has dealt with this aspect in Paragraphs-12, 13 & 14. They are as follows:

It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and subsection (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on “reasonable grounds”.

The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

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 positive finding as to whether or not the accused

has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on hail. 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.”

Based on these guidelines and observations, I am deciding the present application.

I need to decide following questions in this application.

I. Whether the offences alleged against the Applicant are bailable. This question needs to be decided because the

Applicant is claiming her release on bail as a matter of right.

II. If the offences are non-bailable, then, as to whether rigours mentioned in Section 37(1)(b) of NDPS Act are applicable.

III. If such rigours are not applicable and if the offences are non-bailable then whether the Court should exercise its discretion to grant or refuse bail.

WHETHER ALL THE OFFENCES UNDER NDPS ACT ARE NON-BAILABLE

The applicant has vehemently contended that the allegations, at the highest, show that the offence is a bailable offence and the Applicant could not have been detained in custody since the Applicant was ready and willing to furnish bail.

This issue is important and, therefore, I am examining this issue in detail. In support of his contention that the offences involving small quantities are bailable, Mr. Maneshinde relied on a judgment of a Single Judge of this Court in the case of Stefan Mueller Vs. State of Maharashtra. In this case, it was held that the offences involving small quantities of contraband were bailable offences.

. This judgment in the case of Stefan Mueller was relied on by a Division Bench of High Court of Delhi in the case of Minnie Khadim Ali Kuhn Vs. State NCT of Delhi and others. The learned Single Judge Bench of this Court in Stefan Mueller (supra) has observed that the heading or the marginal note of Section 37 reads as “Offences to be cognizable and nonbailable”.

However, the language of Section 37 itself mentions that every offence punishable under this Act shall be cognizable, but, there is no such similar sentence mentioning that every offence punishable under NDPS Act shall be non-bailable.

. The learned Single Judge referred to a few judgments explaining that marginal note, heading or title of a Section has a limited role to play in the construction of statutes. In cases of conflict between the plain language of the provisions and the meaning of the heading or title, the heading or title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder.

The learned Judge has observed that since the Legislature has not declared specifically under Section 37 that all the offences under the Act shall be non-bailable, the provisions of CrPC are required to be looked into to find out whether the offences under NDPS Act are bailable or not. The learned Single Judge thereafter referred to Part-II of the Schedule to the Code of Criminal Procedure, 1973 (for short, ‘CrPC’), which gives classification of offences against other laws declaring them to be bailable or non-bailable. This classification under Part II of the Schedule to CrPC mentions that the offences in other laws are bailable if they are punishable with imprisonment for less than three years or with fine only. Therefore, according to the learned Judge, since the offences involving small quantity of the contraband were punishable for sentences less than three years, these offences would be bailable. In the same judgment, it was further held that in bailable offences, even conditions cannot be imposed on the accused in view of provisions of Section 436 of CrPC.

The judge then went on the describe the amendments brought in to the sections of NDPS Act in 1985 and 2001.

“The situation has not changed since 1999 when these observations were made by the Hon’ble Supreme Court. In fact, the situation has become worse. Therefore, these observations apply to today’s scenario with more force,” the judge said.

Further examining the provisions of Section 27A, Justice Kotwal said in his observation, “The allegations and material against the present applicant are that on some occasions she had used her own money in procuring drugs. She facilitated procuring of drugs through her brother. For that purpose employees of Sushant Singh Rajput were also used. As discussed earlier, her acts would not fall under Section 27A of the NDPS Act.”