Bail in Commercial Quantity: NDPS Act

The cardinal principle of presumption of innocence unless proved guilty or bail rule jail exception is not applicable to special Acts such as NDPS, MCOCA etc, because of the fact that the offences under those special acts are considered to be the gravest one and they shake the very conscience of the society at large.

Also keeping in mind the tendency or impact of the offences allegedly committed under the NDPS ACT, 1985, the legislature in its wisdom had already inserted an inbuilt presumption of Culpable Mental State on accused persons i.e. the courts shall presume the existence of such mental state (Intention, Motive, Knowledge of a fact or reason to believe), but it shall be a defence for the accused to prove that he had no mental state with respect to the act charged.

The Narcotics Drugs and Psychotropic Substances Act (NDPS ACT) 1985 was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances.

 NDPS Act categorizes the offences into three Categories

Small Quantity

As per section 37 of the NDPS Act, 1985 all the offences falling under the act are cognizable and non-bailable. Meaning thereby, if we go by section 37 of the NDPS Act,1985 even the matters pertaining to small quantity are non-bailable.

However if we go by schedule 2 of Cr.P.C 1973, which divides the offences punishable upto two years are bailable. There were instances where the special courts under NDPS Act,1985 even refused to admit persons arrested for small quantity on bail by referring to the aforesaid section 37 of the NDPS Act,1985.

Hon’ble Delhi High Court for the first time has held that the matter involving small quantity are bailable irrespective of the fact that it is mentioned in the NDPS ACT, 1985 that all offences are cognizable and non-bailable .

Intermediate Quantity (less than commercial)

For the offences falling under the intermediate or less than commercial quantity stringent provisions of section 37 are not attracted and the offences under the said category are governed by Section 437 of the Code of Criminal Procedure,1973 i.e. general principles for grant of bail as applied in other cognizable and non-bailable offences.

Commercial Quantity

Commercial quantity offences are punishable with not less than 10 years and there is an embargo of Section 37 of the NDPS, 1985 in so far as the bail in commercial quantity is concerned.

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

A. Reasonable ground for believing that the accused is not guilty of such offence.

B. The additional burden on the accused that the accused will not likely to commit an offence if he was granted bail.

To Satisfy the twin test of Section 37 of the NDPS Act, the Hon’ble Supreme Court while considering the provisions of Section 21 of the Maharashtra Control of organized Crime Act, 1999 which are paramateria to Section 37 of the NDPS Act, has laid down the approach to be adopted while deciding the bail application which is given as below :-

Reasonable ground for believing that the accused is not guilty of such offence

“Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to enlarge him on bail. Each case, therefore, must be considered on its own facts.

The question as to whether he is involved in the commission of organized crime or abetment thereof must be judged objectively.

Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not by itself be sufficient to continue to keep him behind the bars although on an objective consideration the court may come to the conclusion that the evidences against him are not such as would lead to his conviction.

In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete.

Accused likely to commit offence if he was granted bail

Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.

However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.”

The Hon’ble Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:

“The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty

It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.

But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”

Non-Compliance of Mandatory Provisions

Since the offences under NDPS Act are punishable with maximum imprisonments, the legislature to safeguard the rights of accused from being falsely implicated, has mandated the compliance of mandatory provisions i.e. Section 42 or Section 50 of the NDPS Act, failure of which will result in acquittal.

Hon’ble Supreme Court in, while granting regular bail has held that, there was a serious violation of Section 42 of The NDPS Act, 1985 and since Section 42 of The NDPS ACT, 1985 is a mandatory provision , the accused is granted regular bail.

As per the FIR, the mandatory provision of Section 50 were not complied with and also there was no case pending against the petitioner.

Thus, the petitioner was granted regular bail; held the Hon’ble Punjab & Haryana High Court.

The Hon’ble Gujarat High Court considered the following factors favouring an accused :-

1. There are material contradictions so far as, (1) topography of house where raid was conducted, (2) floor of the house, whether ground or first, (3) ownership and possession of the house

2. There was no proper warrant for seizure or raid. 3. Raid was conducted in breach of provisions of Section 42 i.e. after sunset. 4. Presence of accused was not confirmed at the place. 5. Some of the 5 witness have turned hostile and one of them has stated that police has simply noted his name but his statement was not recorded by asking him the facts.

6. One of the witnesses categorically admits that contraband material was not seized before him and, that, accused was not arrested before him but police has told him to identify the accused and, therefore, he has identified the accused. 7. The owner of the premises or her son was not examined, since they would be the best person who can confirm that house was rented to appellant and hold by him only.

Accused unaware of Illegal Activities

Sujit Tiwari vs. The State Of Gujarat on 28 January, 2020, Hon’ble Supreme Court has held that:- “Without going into the merits, we feel that the case of the appellant herein is totally different from the other accused.

Reasonable possibility is there that he may be acquitted

He has been behind the bars since his arrest on 04.08.2017 i.e. for more than 2 years and he is a young man aged about 25 years. He is a B.Tech Graduate.

Therefore, under facts and circumstances of this case we feel that this is a fit case where the appellant is entitled to bail because there is a possibility that he was unaware of the illegal activities of his brother and the other crew members.

Differences in Test Results

Hon’ble Delhi High Court held that; “I find that the differences in the test results of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial.

However, on the basis of the materials brought on record, there is every likelihood that the petitioner may not be convicted in this case. It is further to be examined as to whether there is any likelihood of the petitioner committing any offence while on bail .

Mere Disclosure or confession by an accused in not sufficient without independent incriminating material found.

The Hon’ble Delhi High Court while granting regular bail has held that, “The prosecution did not find any incriminating independent material apart from incriminating statement of the co-accused as well as confession by the present petitioner. Petitioner has also retracted the statements given by him and contended that force, coercion and third degree methods were used to extract the confession. Further, there is nothing on record to show that the petitioner, was earlier involved in any similar offence or during the period that he was enlarged on bail, he was involved in any offence8 “. Again the Hon’ble Delhi High Court while granting a regular bail to an accused has held that:- “No recovery has been made from the petitioner. Further even as per the prosecution the confessional/disclosure statement of either the petitioner or the co accused has not led to the recovery of any incriminating material. Accordingly, at the present stage there are missing links between the petitioner and the commission of the subject offence9 “. The Delhi High Court in one of its rulings dealing with a regular bail matter stated, “On perusal of the record, it is prima facie seen that there are two major missing links in the case of the prosecution.

There is no link established by the prosecution between the petitioner with the alleged supplier Manoj. Further the entire case of the prosecution, in so far as petitioner is concerned is circumstantial i.e. based solely on disclosure statement of a co-accused which is per se not admissible without there being any corroboration. Prosecution has not been able to establish any connection between the subject offence and the bank accounts, where the petitioner is alleged to have been depositing money or with the holders of those accounts. Merely because the petitioner has been having telephonic conversation with the co-accused, would not be sufficient to hold that petitioner is guilty of the subject offence. There is no recovery made from the petitioner. I am of the view that requirement of Section 37 of the NDPS Act are satisfied. In so far as the petitioner is concerned, there are reasonable grounds to believe that petitioner is not guilty of the said offence.

The Hon’ble Delhi High Court while granting regular bail to an accused has held that:- “When there is no other material apart from confessional statement of the accused, the petitioner has made out a case for regular bail11”. The Hon’ble Delhi High Court while granting regular bail to an accused has held that:- “The petitioner has been arrested on the basis of the disclosure statement of co-accused Pulkit Rastogi from whom charas and morphine were recovered. However, no psychotropic substance was recovered from the car of the petitioner, the petitioner deserves to be granted regular bail”.

Regular Bail on Parity

Investigation in the case is complete and the challan has already been presented.Out of total eight prosecution witnesses cited, three have been examined. The trial, as such, will take some time to complete.In the totality of circumstances and without expressing any opinion on the merits of the case, this Court is of the considered view that the petitioner is entitled to the concession of bail. Petition is allowed.

That the investigation in the present case is complete and the challan has been presented on 29.01.2015. The trial, as such, is at the initial stage. Also the other co-accused has been granted regular bail by this court, the present accused deserves the benefit and a regular bail is accordingly granted to the present accused14. “The charge-sheet has been filed, investigation is over and the fact that the co-accused, who have played similar role have been enlarged on bail by the Coordinate Bench of this Court vide order dated 06.11.2015 passed in Criminal Misc. Application No.19710 of 2015, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Default Bail in NDPS Act

Since the challan is required to be presented within a period of 180 days in an offence involving commercial quantity as per Section 36A(4), in the present case it was presented on 183rd day. This gave the accused the indefeasible right to be released on bail, Hence bail was granted.

Conclusion

Therefore, even in commercial quantity if the courts are satisfied of the twin test i.e reasonable ground for believing that the accused is not guilty of such offences ( Non compliance of mandatory provisions of the NDPS Act i.e. Section 42 or Section 50, disclosure statement of co-accused or accused is not corroborated by any independent incriminating evidence etc) along with the condition that the accused will not likely to commit offence if he was granted bail (keeping into consideration the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence), the courts can grant regular bail even in commercial quantity cases.

Judgments Referred:

1 Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. on 8 May, 2012

 2 Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another, 2005 AIR SCW 2215

 3 Union of India v. Shiv Shanker Kesari (20 07) 7 SCC 798

4 Sarija Banu Alias Janarthani Alias Janani and Anr. v. State criminal appeal No 302 of 2004

5 Sudesh Singh@ Tandu v. State of Punjab, 2011(9) R.C.R. (Criminal) 922

6 Whether It Is To Be Circulated To vs. State Of Gujarat on 24 December, 2014

7 Ram Narayan vs State on 24 May, 2005

 8 Rajesh Sharma vs Directorate Of Revenue on 16 November, 2018

9 Narotam Pradhan vs State Of Nct Of Delhi on 18 January, 2019

10 Dalip Singh @ Langda vs The State (Nct Of Delhi) on 14 January, 2019

11 Rahul Gupta @ Roshan @ Khalla vs State on 5 July, 2019

12 Gaurav Mavi vs St ate on 28 February, 2020

13 Shashi Kant vs State Of Punjab on 4 April, 2014 ,

14 Babu Ram @ Bau@ Babu vs State Of Punjab on 2 March, 2015

15 Jenisbhai Thakarshibhai vs State Of Gujarat & on 3 December, 2015

16 Lakhbir Khan v. State of Punjab, 2011(9) R.C.R. (Criminal) 884

Author is Advocate on Record in Supreme Court of India.