While granting bail to a model and actor, who is accused of supplying drugs to a late actor via her brother, the Bombay High Court has made a pertinent observation that all offences under the Narcotic Drugs and Psychotropic Substances Act are non-bailable regardless the quantity of contraband.

The Court observed that the heading of Section 37 of the NDPS Act clearly stated that the offences under the Act were non-bailable. The provision did not leave any scope for an interpretation that offences involving small quantities should be bailable.

Court traced the legislative history of the Act since it was brought into force in 1985 –  At that time, Section 37 of that Act read : Offences to be cognizable; Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable. Thus, there was no mention in the Act itself as to whether the offences would be bailable or nonbailable. Therefore, to consider this aspect, recourse needed to be taken to the provisions of CrPC. i.e. Part II of its Schedule. It is important to note that the Act, as it stood then in 1985, Section 27 provided punishment of one year for illegal possession in small quantities for personal consumption of a contraband. Subsequently, the Legislature felt that although the major offences were non-bailable by virtue of level of punishment, on technical grounds the drug offenders were being released on bail. Therefore, it was felt necessary to make the offences cognizable and non-bailable.

If the accused claims bail as of right in case of possession of small quantity then no investigation can be carried out to find the source and trade of the contraband, which defeats the object of the Act.

While reaching this conclusion, Justice Kotwal referred to the judgment delivered by the Constitution Bench of the Supreme Court in State of Punjab vs Baldev Singh (1999) which had an observation that the NDPS offences were non-bailable. Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.

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“, Justice Kotwal added.

Section 37 was amended in 2001 wherein a sentencing structure was introduced depending on the quantity of drugs in respect of certain penal sections of the NDPS Act. Thus, by the amendment carried in the year 1989 for the first time, the provisions of CrPC were excluded by specifically introducing a non obstante clause excluding the application of CrPC. for grant of bail. Therefore, in case of any inconsistency between the NDPS Act and CrPC, the provisions of NDPS Act are to prevail.

The Court also clarified that a competent officer can effect an arrest if he thinks it proper to arrest such a person. This is provided under Section 42(d), however- “The officer arresting any such person has to keep in his mind the benevolent provisions of this Act as well. This Act is not only a strict, stringent and harsh Act for drug traffickers, it also shows compassion and leniency in laying down reformative approach under Sections 64A and 71. This reformative approach should never be lost sight of. Having said this, one cannot overlook the prevailing situation in today’s society. The offenders involving smaller quantity or lesser punishment expose themselves to immediate arrest. They cannot claim bail as of right. The Act needs to have this deterrent effect to curb the spread of drug abuse.”


Order- Rhea Chakravorty v. Union of India

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