Section 37 of the NDPS Act

The Object of The Narcotic Drugs and Psychotropic Substances Act, 1985 (“Act”) is to “consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc.” [See, Narcotics Control Bureau vs. Kishan Lal, (1991) 1 SCC 705].

Section 37 of the Act: 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.”

Section 37 has been incorporated in the Act to achieve the object as mentioned in the Statements of Objects and Reasons for introducing Bill No. 125/ 1988: “Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985 the need to amend the law to further strengthen it has been felt..” [See, Union India v. Ram Samujh Singh, (1999) 9 SCC 429 followed by a 3-Judge Bench in Tulsidas v. State of Maharashtra, (2000) 8 SCC 437]. The power to grant bail under any of the provisions of the Code of Criminal Procedure, 1973 (“CrPC”) is necessarily subject to the conditions mentioned in Section 37 of the Act in a relevant case, unless the granting of bail is automatic or by default, for instance, when the complaint is not filed within the maximum period of custody permitted during investigation [See, Union of India v. Thamisharasi, (1995) 4 SCC 190]. The Hon’ble Supreme Court of India (“SC”) has held frequently that in case of inconsistency between Section 439 of the Cr.PC and Section 37 of the Act, Section 37 prevails [See, Narcotics Control Bureau vs. Kishan Lal, (1991) 1 SCC 705]. Such is also the case, when it’s a question between Section 437 of the CrPC or Section 438 of the CrPC on the one hand and Section 37 of the Act on the other [See, Union of India v. Thamisharasi, (1995) 4 SCC 190; Ved Prakash Goel v. Central Bureau of Narcotics, 93 (2001) DLT 729]. A perusal of Section 37 of the Act “leaves no doubt in the mind of the court that a …liberal approach in the matter of bail under the Act is uncalled for..” [See, State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673]. It has been repeatedly stressed, in fact, that cases under the Act should be tried as early as possible because in such cases “normally accused are not released on bail” [See, Achint Navinbhai Patel v. State of Gujarat, (2002) 10 SCC 529]. Very recently in the matter of Union of India v. Sanjeev Deshpande, 2014 (9) SCALE 335, decided on 12th August, 2014, a 3-Judge Bench of the SC has reiterated that, “Section 37 departs from the long established principle of presumption of innocence in the favour of an accused person until proved otherwise.” That Section 37 of the Act is to be interpreted strictly and in a stringent fashion is thus the followed position of the SC. Even if some of the observations were to be regarded as obiter dicta, obiter dicta of the SC has considerable importance [See, Commissioner of Income-Tax v. Vazir Sultan, AIR 1959 SC 814].

The Hon’ble High Court at New Delhi, however, has delivered divergent opinions while interpreting Section 37 of the Act. That in Islamuddin v. State of Delhi, reported in 82 (99) DLT 449, decided on 16.08.1999, it was recognized that the Hon’ble Court “would not have power to release an accused on bail even for a few days for genuine reasons and purposes like meeting the ailing or dying parents or spouse or children and attending the cremation or the funeral of such near relations”. In Rajni Devi v. The State, reported in 2006 (2) ALT (Cri) 2, decided on 24.01.2005, it was stressed too that the Hon’ble Court “has no power to grant bail merely on the ground of illness or hospitalization of the spouse or on any other similar ground unless and until the conditions specified in Section 37, which is a mandatory provision, are complied with.” That nonetheless in Wernli Barbara v. State, reported in 121 (2005) DLT 420, decided on 23.05.2005, the Hon’ble Court took a permissive view. It considered R.B. Sharma v. State of Maharashtra, (2005) 5 SCC 294 [that had expounded upon an in pari materia provision – Section 21 (4) of the Maharashtra Control of Organized Crime Act, 1999] and held that it is trite that a statute should not be interpreted in such a manner as would lead to absurdity; It held that the Accused was entitled to bail on “humanitarian grounds also”. More recently in Purushottam Lal v. Directorate of Revenue, decided on 06.02.2014, it was again observed that Section 37 of the Act is, “meant only for syndicates and not the individual persons, who are either trapped due to their innocence or their poverty under which circumstances they lead their life. The aspect of origination and destination of the contraband invariably not investigated and not even carried to a logical end.” It is evident that at least in a couple of decisions of this Hon’ble High Court at New Delhi, the stringency of Section 37 of the Act has been dismayed at. It is unclear, at this juncture, whether “humanitarian grounds” can at all be any ground deserving to be considered in a Section 37 matter. It is correct that “Despite the fact there is no equivalent of Article 141 so far as the High Court are concerned… the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding”. A detailed consideration of Section 37 of the Act by the Hon’ble High Court at New Delhi should be worth its weight in gold.

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