This article is written by Anushka Singhal, of Symbiosis Law School, Noida. In this article, she discusses Section 37 of the NDPS Act. 

Introduction

Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) governs the provisions regarding drugs in the country. This Act has 83 sections and six chapters. It lays down provisions regarding punishment and provides rules and regulations for controlling the operation of drugs and psychotropic substances. Recently, Section 37 of this Act came into the limelight when the Hon’ble Supreme Court said that a liberal approach cannot be adopted when granting bail under the NDPS Act. Let us delve more into this Section and interpret it. 

Section 37 of NDPS Act

Section 37 of the NDPS Act lays down the provisions for offences under this act. Offences under this Act are cognizable and non-bailable. Under this Act, the following provisions are laid down-

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  1. Offences under this Act are cognizable, i.e., an offence for which the police can arrest without any warrant. 
  2. Offences under this Act are non-bailable unless the public prosecutor has been allowed to oppose the application and the court is satisfied that the accused shall be released
  3. The provisions regarding bail in this particular Section are in addition to the provisions laid down under the Code of Criminal Procedure (CrPC),1973.

Interpretation by the Courts

State of Kerala and Ors. v. Rajesh and Ors. (2020)

In this case, the circle inspector of excise arrested an accused who was carrying hashish oil. The accused requested for bail. The trial Court rejected the bail request and held that under Section 37 of the NDPS Act, he cannot be granted bail as there was prima facie evidence of him being guilty. The High Court reversed the order and even without noticing Section 37 of the NDPS Act, granted him bail. The Supreme court reversed the decision and held that the single-judge bench of the High Court was wrong. The Court held that the term ‘reasonable grounds’ mean ‘something more than prima facie grounds.’ It said that the High Court had taken a very liberal approach and overlooked Section 37 of the NDPS Act. 

Union of India v. Thamisharasi and Ors., (1995) 

In this case, the Court held that Section 167 of Code of Criminal Procedure, 1973 (CrPC) and Section 37 of the NDPS Act are not in conflict with each other. It held that the limitations under Section 37 of the NDPS Act are not attracted when the grant of bail is automatic under Section 167 of CrPc, i.e., when the complaint is not filed within the maximum period under which the complaint has to be generally filed. The case also brought out a distinction between Section 143 of the CrPC and Section 37 of the NDPS Act. It laid down that the latter was a more stringent provision. Under Section 37, the onus is on the accused to prove that he is not guilty while under the CrPC, the burden is on the prosecutor to prove that the accused is indeed guilty and thus he should not be granted bail. 

Satpal Singh v. State of Punjab, (2018)

In this case, the Hon’ble Supreme Court held that in the cases related to drugs, an order should be passed after taking Section 37 of the NDPS Act into consideration. The relevant provisions under CrPC cannot be applied by ignoring Section 37. In this case, the Hon’ble High Court had granted bail keeping in mind Section 438 and 439 of CrPC. The Court reminded the police and the prosecutor that they need to show due diligence and vigilance while dealing with the cases under the NDPS Act.

The State (GNCT) of Delhi v. Lokesh Chadha,(2021)

In this case, certain parcels from an office were seized as they contained certain prohibited drugs. The respondent was arrested. The trial Court convicted the defendant but the High Court acquitted him. The matter went to the Supreme Court. It held that there should be strong compelling reasons for the grant of bail and since there was no such reason, in this case, the Supreme Court overturned the decision of the High Court. 

Offences for which Section 37 is invoked

Chapter V of the NDPS Act lays down the provision for offences and penalties. All offences committed under this act would be non-cognizable offences under Section 37 of the same Act. Following are the offences under this Act-

  1. Section 25 of the Act provides punishments for the use, purchase, sale, transportation, import or export of warehoused poppy (a drug). The punishments under this Act are divided into three categories, depending upon the quantity of the poppy straw.
  2. Section 16 of the Act lays down the penal purposes for the use, purchase, sale, transportation, imports or exports of coca leaves. 
  3. Section 17 lays down the provisions for punishment for the offences related to prepared opium while Section 18 provides penal provisions for opium and opium poppy. Section 19 of the Act also lays down the provisions for offences related to opium. It provides that if any authorised cultivator illegally deals with opium, he shall be punished for a rigorous punishment of not less than 10 years and not more than 20 years.
  4. Section 20 sought to punish those who commit offences related to cannabis. Offenders under this Act are divided into three categories based on the quantity they deal with.
  5. Section 21 of the Act lays down penal provisions for those dealing in manufactured drugs. Those dealing in manufactured drugs or any other substance containing the same would be punished.
  6. Section 22 and Section 23 deal with offences related to narcotic and psychotropic substances. While Section 22 punishes for other offences related to psychotropic substances, Section 23 specifically lays down punishment for the import and export of such drugs.
  7. The Act also resolves to punish those who consume drugs. Section 27 of the Act lays down provisions for punishment. If the drug consumed is in the form of cocaine, morphine, diacetyl-morphine or any other narcotic or psychotropic substance, the punishment prescribed is imprisonment for a term of 1 year, or a fine of rupees 2000, or both. Where the substance consumed is other than these substances, then the punishment prescribed is 6 months of imprisonment or with a fine which may extend up to ten thousand rupees or both. Moreover, one who finances or harbours any person involved in drugs would be punished under Section 27-A. 

Similarly, there are punishments for an attempt, abetment, criminal conspiracy and preparation to commit an offence under the NDPS Act. It has been held by the courts that Section 37 of the Act is attracted only when the offence is punishable with a punishment of five years or with a punishment that may extend up to five years. In A.V. Dharm Singh v. State of  Karnataka, (1992) the Hon’ble Karnataka High Court held that the legislative intent was to invoke Section 37 for offences with a punishment of five years and thus the same should be followed. There is an ambiguity in the provisions and the courts have had to deal with the question of whether the term five years punishment means a minimum of five years of punishment or punishment that may extend up to five years. In Peter v. State of Kerala, (1993) the Kerala High Court held that it is not possible to read the term imprisonment of five years mentioned under Section 37 (b) as a minimum punishment of five years. 

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Principles for grant of bail under Section 37 

As per section 37 of the NDPS ACT, 1985 bail should not be granted to an accused unless the accused is able to satisfy:

  1. Reasonable ground for believing that the accused is not guilty of such an offence. 
  2. The additional burden on the accused is that the accused would not commit an offence or is not likely to commit an offence if granted bail.

The Hon’ble Supreme Court in the case of Union of India v. Shiva Shankar Kesari,(2007) has tried to lay down an approach that needs to be adopted while granting bail under Section 37 of the NDPS Act. The Court should not look over for the records that say that the accused is not guilty, rather it should look for the reasonable grounds that point out that the accused is not guilty and then take their decision of granting the bail. Thus, a Court has to look over the provisions and then decide the feasibility of granting bail to the accused. 

The conflict between Section 37 of the NDPS Act and other Indian Laws

While bail is the rule under other Indian Laws, under the NDPS Act, bail is an exception. Article 19 of the Indian Constitution gives us the right to freedom and liberty while Section 37 (2) of the NDPS Act restricts the same. Under this Section, the accused cannot be released on bail unless and until some strict conditions are fulfilled. Bail is an exception under this Section of the NDPS Act while under the other sections of the Act, bail is a rule. This rule of ‘bail as an exception’ makes this Section go against the spirit of Article 19. The Hon’ble Punjab and Haryana Court, in the case of Ankush Kumar v. the State of Punjab, (2018) raised the question that this Section seemed ultra vires to the Constitution. The Court did not deal with this question as it had no authority to do so. Thus, the Court held that the provisions under Section 37 of the NDPS Act have to be complied with before granting bail to an accused under Section 239 of the CrPC. The constitutional validity of this Section was questioned but still, there is no consensus on the same.

Other laws where bail is an exception

Apart from Section 37 of the NDPS Act, there are a plethora of other offences which are cognizable and non-bailable. Following are some of the laws under which bail is an exception-

National Security Act, 1980

Under this Act, a person can be detained for up to 12 months under the orders of the Central or state government for securing the security of the nation. Unlike other offences, where one has the right to bail under Section 50 of the CrPC, a conviction under this Act takes away such a right from a person.

Unlawful Activities (Prevention) Act, 1967

Under Section 43 D of the Act, an accused person does not have the right to bail if the court feels that there are reasonable grounds for his detention. Also, this Act lays down that if a non-Indian has been convicted under this Act, no matter what, he will not be granted bail. 

Non-bailable offences under IPC

There are certain non-bailable offences under the Indian Penal Code,1860. For example, waging a war against the country (Section 121), sedition (124-A), adulteration of drugs (Section 274) etc.

Conclusion

Section 37 of the NDPS Act works as a deterrent when it comes to offences related to drugs. It is necessary because it leads to the creation of fear among people that if they commit a crime under this Act, they will not be granted bail. On the other hand, this provision sometimes becomes draconian as innocent people get jailed. Thus, the judiciary needs to adopt a cautionary principle to ensure justice. 

References

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