S. 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act: Cal HC

Calcutta High Court: The Division Bench of Bibhas Ranjan De and Debangsu Basak, JJ., while addressing a bail application in a case under NDPS Act, remarked that,

Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act. 

Bench also observed that,

After careful scrutiny of Section 37 of the NDPS Act 1985 we find that the exercise of power to grant bail is not only subject to the limitations contained in section 439 Cr.P.C, but is also subject to the limitations placed by Section 37 which commences with non-obstante clause.

On receiving information with regard to trafficking a substantial quantity of “Ganja” and likely to be unloaded in the house of one Susanta Dey and then to be supplied to Asim Mirdha, a team of NCB Officers reached near the vicinity of the said house.

NCB team found the vehicle and got hold of two persons who were unloading the sacks of Ganja.

The entire contraband article weighing 215 kg was seized under Section 43 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Thereafter voluntary statement of the suspects was recorded under Section 67 of the NDPS Act.

All seized articles were found to be Ganja by the examination report of the chemical laboratory and the said report was submitted before the Jurisdictional Court. During investigation, Asit Karmakar and Manik Das were arrested and their statements were recorded under Section 67 NDPS Act.

Analysis and Decision

Supreme Court in Union of India v. Nawaz Khan, (2021) 10 SCC 100, relied on Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, where Supreme Court observed that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of NDPS Act.

Supreme Court further relied on Union of India v. Prateek Shukla, (2021) 5 SCC 430, and noted that non-application of mind to the rival submission and the seriousness of the allegations involving an offence under the NDPS Act are grounds for cancellation of bail.

Limitations under Section 37 of the NDPS Act regarding grant of bail for offence involving a commercial quantity are:

(i)The prosecutor must be given an opportunity to oppose the application for bail; and

(ii)There must exist ‘reasonable ground to believe’ that:

(a) the person is not guilty of such offence; and

(b) he is not likely to commit any offence while on bail.

High Court expressed that, considering the seriousness of offence punishable under NDPS Act and in order to control the menace of drug trafficking, stringent parameters for grant of bail under the NDPS Act has been prescribed.

Elaborating further, the Bench observed that the operative part of that section is in the negative form proscribing the enlargement on bail of any person accused of commission of an offence under the NDPS Act unless two conditions are satisfied.

First condition is that the persecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are ‘reasonable grounds for believing’ that he is not guilty of such offence.

Bench observed that,

It is axiomatic that ‘reasonable grounds’ means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. It requires existence of such facts and circumstances as are sufficient to justify satisfaction that the accused is not guilty of the alleged offence. Section 37 of the NDPS Act mandates a more stricter approach than an application for bail sans the NDPS Act.

High Court while referring to a catena of decisions held that while dealing with a bail application it cannot overlook the complicity of the petitioner in terms of Section 10 of the Evidence Act.

Noting that the petitioner did not establish cogent and unimpeachable evidence that he was not in conversation or contact with the arrested co-accused through the mobile phones which the NCB relied upon to claim nexus between the petitioner and other co-accused and the conspiracy between them, Bench held that the petitioner failed to discharge the onus as mandated under Section 37 of NDPS Act.

In view of the above discussion, bail was rejected. [Manik Das v. Narcotics Control Bureau, 2022 SCC OnLine Cal 195, decided on 28-1-2022]


Advocates before the Court:

For the Petitioner:

Mr. Shekhar Bose, Sr. Adv Mr. Apalak Basu

Ms. Pritha Bhaumik

Mr. Nazir Ahmed

Ms. Snehal Seth

For the OP:

Mr. Y.J. Dastoor, Ld. A.S.G Mr. Phiroze Edulji

Ms. Amrita Pandey

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