The basic principles concerning bail under the Narcotics Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) can be understood by a brief overview of cases that mainly concern Section 37 of the Act. As per 37(1), every act must be cognizable, and the public prosecutor must be allowed to oppose any bail application. Post this, as per Union of India vs Ram Samujh 1999 (2) MWN (Cr.) S.C. 353, to justify bail under the scope of the Act, there must be reasonable grounds for believing that the person accused of the crime is not guilty of it wholly and there must exist a reasonable apprehension in the mind of the judge that the accused is not likely to commit any offence while he is on bail. Furthermore, limitations from the Criminal Procedure Code, 1973 (“Cr P.C.”) are placed in the form of Section 37(2) which have been studied through precedents.
Top ten Grounds for Bail under the Narcotic Drugs and Psychotropic Substances Act (NDPS) of 1985 are:
- Marriage of Family Member: As a principle, if there has been a grant of interim bail for a persona and the same has not been misused, courts favor giving bail again as the lack of misuse and good behavior serves as a good incentive. Delhi High Court in Rajni Devi vs State, 2005 31 AIC 632 (Del) granted bail on account of the marriage of son provided the petitioner had been granted interim bail before and it was not misused. In the present case, there were clear indications that the likelihood of committing an offence while on bail was negated by the lack of misuse of interim bail granted beforehand.
- Accused not found in Possession, thus not Shifting Burden: The purity of confessions remains a valid concern in the NDPS Act. If the confession in question is not done voluntarily, the courts are always inclined to give bail as there are doubts cast on the bonafide nature of evidence. Supreme Court in Raju Premji vs Customs Shillong Unit, 2009, 16 SCC 496 granted release based on the involuntary nature of confession since an impure confession does not shift the burden of proof on the accused, especially in cases where the contraband was not found in possession of the accused.
- Illness of a Family Member: The application of Section 37 of the NDPS Act does not limit the attraction of bail provisions but does increase the scrutiny on the person accused since the NDPS is a specialized act. The Delhi High Court in Pushpa Rani vs NCB, 2005 (82) DRJ 713 remarked that the grounds for bail under NDPS are similar as under normal circumstances and remanded the matter to the sessions judge after reasoning with the plea of illness of husband. This is in line with the precedent of reasonable grounds laid down by the bail jurisprudence.
- No Indication of a Connection with Possession: The court is inclined to give bail when wherein there was nothing to indicate that the applicant had any connection of possessing an illegal substance. In Vijay v. State NCT, 2004 (78) DRJ 639, the petitioner was found standing near the Contessa Car of his brother wherein his brother opened the dicky of the car to reveal a large quantity of drugs. Even though one may presume guilt since the car was of his brother, there was no direct evidence or reason to believe that the petitioner was ever in possession of those drugs himself.
- No Misuse of Interim Bail granted Earlier: Extenuating circumstances are not necessary to prove if the lack of misuse of bail has been observed in cases. In the case of Mangna v State, 2004 (72) DRJ 469, decided by the High Court of Delhi, bail was been granted on grounds of solely “no misuse of earlier interim bail granted to petitioner” along with the condition to pay a certain amount and not tamper with evidence.
- The sheer belief that the Accused might not be Guilty: When the recovery of contraband is not made from the possession of a person, it serves the accused well in their submissions for grant of bail. Ram Lubhaya vs State of U.P, Criminal Appeal No. 7225 of 2011 involved a peculiar set of circumstances wherein the drugs were found in the car of the accused and he had failed to transfer the vehicle to another person; Bail was granted based on the fact “that there are grounds for believing that appellant might not have been guilty of the offences and in the circumstances if an undertaking is being given by the accused-appellant that during the bail he will not commit any offences of same nature again, the bail can be grant to the accused-appellant.” Some of the common conditions placed on applicants upon grant of bail other than tampering of evidence include that one must not pressurize the prosecution witnesses and that applicant must appear on the date fixed by the court.
- No Prima Facie Evidence that the Accused is guilty: There are cases wherein arrests are made on very lenient evidence. Disclosure statement of a co-accused does not serve as substantive evidence which is enough to reject bail. In a case of Manoj Kumar vs State of NCT Delhi, 2003 66 DRJ 572, decided by the Delhi High Court, arrests were made upon the basis of a disclosure statement and the fact that the name of the co-accused was found in a diary that belonged to the applicant. Bail was granted on grounds of “prima facie there appears to be no believable evidence against the petitioner to hold him guilty of the offence under Sections 21/29 of the Act. The disclosure statement of a co-accused is not substantive evidence” and the fact that the entry in the diary is a very questionable piece of evidence.
- No Commercial Activity: The Supreme Court in the case of Birbal Prasad vs State of Bihar, Criminal Appeal No. 175 of 2018 granted bail on the ground of non-commercial activity and non-involvement in any other crime. The government specifies the difference between small quantity and commercial quantity of substances through various notifications. Commercial quantity in relation to any substance refers to quantity exceeding that what has been specified by the government. Non-involvement in commercial activity serves as good precedent for bail.
- Purity must be determined to conclude Retail Trade: The weight of contraband, though very important to determine the quantity for the purpose of the NDPS Act, must be supplemented by the knowledge of the purity of the contraband found to get a fairer representation. Under the Act, it becomes abundantly clear that the recovery from an addict must be treated differently from recovery from someone involved in the wholesale or retail trade. Delhi High Court in the case of Mahesh Pal Singh vs State, 2006 (90) DRJ 60, a substance was recovered which contained only 5.1% heroin which is fairly low in comparison to the 32% bar set in retail trade limit and 60% bar set in wholesale trade; thus, application of Section 21(c) of the Act which lays down that the punishment for commercial quantity to be between 10-20 years of imprisonment with an additional fine that can be imposed is not fair on the applicant; thus, 21(b) which attracts lesser scrutiny must apply and bail must be based on the evaluating the purity of the substance. It was remarked “it would also be necessary to examine the purity levels to come to a conclusion as to whether the recovery is from a person involved in the wholesale trade or in the retail trade or from an addict and all these are to be treated differently under the scheme of the Act. A lack of past antecedent criminal history serves as a good incentive for the court to grant bail.
- Discrepancies in Quantity: Whatever evidence is collected must be credible enough to let the courts rely on it. Delhi High Court in the case of Mohd Ramzan vs State NCT of Delhi, ILR (2005) I Delhi 859, involved the recovery of Ganja made from three bags of the applicants, and almost 600g of sample were taken but the FSL (Forensic Science Laboratory) report done by the expert mentioned that samples weighed 630g, 560g, and 750g; this raised a rebuttable presumption against the guilt of the accused and bail was granted on account of discrepancies in quantity which led the judge to believe that the accused was innocent.
The NDPS Act of 1985 is a specialized Act that specifically deals with contraband substances and offences related thereto. The comprehension of satisfaction in the mind of the judge must be based on ‘reasonable’ grounds; even though ‘reasonable’ has not been defined, more than prima facie satisfaction must exist. There must exist facts and circumstances which are sufficient to justify that the accused is not guilty of the offence as per Union of India vs Rattan Mallik, 2009 2 Supreme Court Cases 624. Thus, the alleged accused has a plethora of grounds available to contest and submit his/her bail before the Court.
Authored By; Adv. Anant Sharma & Ishan Puri