Restrictions On Grant Of Bail U/S 37 NDPS Act Do Not Apply To Constitutional Courts: Allahabad High Court

“I am of the considered view that the restrictions contained in Section 37 of the NDPS Act were meant to be applicable to Courts other than the Constitutional Courts and in view of the provision contained in Section 36-A (3) of NDPS Act, those restrictions do not apply to the Constitutional Courts,” a bench of Justice Subhash Vidyarthi concluded.

For context, under Section 37 of the NDPS Act, the Court can grant bail to an accused only after hearing the public prosecutor. If the prosecutor opposes bail, the accused has to satisfy the court that (a) there are reasonable grounds for believing that he is not guilty of such an offence and that (b) he is not likely to commit any offence after being released from jail. This provision makes it difficult to secure bail in NDPS cases.

However, the Court opined that a proviso to Section 36A (3) of the NDPS Act saves the High Court's special powers under Section 439 of CrPC regarding bail.

The Court noted that the provision contained in Section 36-A (3) of the NDPS Act, saving special powers of the High Courts regarding the grant of bail, was meant to be incorporated in Section 37 of the Act. Still, it has erroneously been placed in Section preceding Section 37.

“In case we look at the bare language of Sections 36-A and 37 of NDPS Act, the defect of misplacement of the provision contained in Section 36-A(3) becomes manifest. Section 36-A does not contain any restriction on the powers of any Court regarding grant of bail, yet Section 36-A(3) provides that nothing contained in this Section shall affect the Special powers of the High Courts under Section 439 CrPC,” the Court said as it noted that Section 36-A only confers special courts with the jurisdiction to deal with NDPS cases.

The Court added that if the makers of the Act had themselves come across this jumbling of the provisions in Sections 36-A and 37 “due to a copy-paste error”, they would surely have straightened it out by reading Section 36-A(3) and Section 37 in conjunction with each other.

Therefore, the Court said that to correct the defect without altering the provisions of the Statute, Sections 36-A and 37 must be read together and interpreted harmoniously so that Section 36-A(3) does not become redundant or otiose.

The Court also referred to the High Court's judgment in Ramji Singh v. Enforcement Directorate (2023), in which the High Court noted a similar "copy-paste" error concerning the grant of bail in money laundering cases under the Prevention of Money Laundering Act (PMLA).

“…the provision contained in Section 44 (2) of PMLA saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 45 of the Act, but it has erroneously been placed just above Section 45. In present times of use of computers, such errors are commonly referred to as the “copy-paste errors,” the Court had observed.

Against this backdrop, the Court examined the bail application filed by Vimal Rajput, a man booked under the NDPS Act for allegedly carrying 7 kg of charas packed in 14 packets, each weighing 500 gms.

The Court noted that the recovery memo stated that a single sample weighing 166 gms was taken from 7 KG charas recovered from the applicant, and that too not in the presence of a Magistrate, as is mandatory under Section 52-A of the NDPS Act and Rule 9 of the 2022 Rules.

“…it is evident that the authorities themselves have violated the mandatory provisions contained in Rules of 2022 in the manner detailed in preceding paragraphs, and prima facie, it appears that the aforesaid violations of the Rules of 2022 will be a strong factor against the accused persons being held guilty,” the Court noted.

In view of this, keeping in view the aforesaid facts, coupled with the fact that the applicant has no previous criminal history and he has been languishing in jail since January 2024, the Court granted bail to the applicant.