Section 37 NDPS Act : Principles For Grant Of Bail For Offences Involving Commercial Quantities

"….It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death−blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. (Union of India v. Ram Samujh and Ors 1999(9) SCC 429)

SECTION 37 OF THE NDPS ACT

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is a firm legislation designed to amend the laws relating to narcotic drugs. It devises strict provisions for the control and regulation of operations relating to narcotic drugs and Psychotropic Substances. Section 37, that comes under Chapter IV of the NDPS Act, discusses the aspect of offences to be cognizable and non-bailable.

Section 37 of the NDPS Act is a tool devised by the parliament to have a check on the menace of dangerous drugs flooding in the market and a sine qua non for granting bail to the accused under the NDPS Act

The detailed breakdown of Section 37 is as follows:

1. The section states every offence punishable under the Act shall be cognizable.
2. No person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity ] shall be released on bail or on his own bond, unless the following conditions are met.
3. For granting bail, the following conditions are to be met,

(i) there are are reasonable grounds for believing that the accused is not guilty of such offence

(ii) that he is not likely to commit any offence while on bail are satisfied

It was observed by the Apex Court in State of Kerala v. Rajesh that , The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non−obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution 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. If either of these two conditions is not satisfied, the ban for granting bail operates.

WHAT IS COMMERCIAL QUANTITY ?

As mentioned above, Section 37 of the NDPS Act considers every offences punishable under the Act as Cognizable. And it denies bail for the offences mentioned under Sections 19 or 24 or 27-A of the NDPS Act and equally any offences regarding commercial quantity. The commercial quantity is well defined under Section 2(vii-a) of the NDPS Act. Which means the quantity that is greater than the quantity specified in the schedule.

Section 2(vii-a) defines : "Commercial quantity" , in relation to narcotic drugs and psychotropics substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.

Another explanation provided by the act which seems relevant is regarding the "Small quantity".

Section 2 (XXIII-a) expounds the aspect of "Small quantity" as the quantity which is subordinate than the quantity specified in the schedule of NDPS Act.

Section 2(xxiii-a): "Small Quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the central government by notification in the official Gazette

THE CONDITIONS STIPULATED UNDER SECTION 37

The first condition as mentioned under Section 37 is to provide an opportunity to the Public Prosecutor and clear her stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. If either of these two conditions is not met, the ban on granting bail operates.

Therefore to summarise the law relating to the rigours of Section 37 of NDPS Act, it can be pointed out as follows:

a.The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].

b. In case the Court proposes to grant bail, two conditions are to be mandatorily satisfied in addition to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738].

c. Apart from the grant opportunity to the Public Prosecutor, the other condition which really have relevance are the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721].

d.The satisfaction contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substantial probable causes for believing and justifying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].

e. Twin conditions of S. 37 are cumulative and not alternative. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].

f. At the bail stage, all that could be seen by the Court is whether the statements of the prosecution witnesses, if believable, would not result in a conviction. [ Babua v. State of Orissa, (2001) 2 SCC 566].

g. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624].

h. While considering the application for bail concerning Section 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798].

i.In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705].

j. Bail must be subject to stringent conditions. [Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84].

The above mentioned observations are reflected in a notable judgment of the Himachal Pradesh High court between Satish Singh v. State of Himachal Pradesh. The Court had summarised the above aspect while granting bail to an undertrial prisoner under the NDPS Act subject to the imposition of stringent conditions.

THE EXPRESSION "REASONABLE GROUNDS"

The expression "reasonable grounds" enjoys a due weightage under Section 37 (1)(b)(ii), which means something more than prima facie grounds.

The conditional part under Section 37 (1)(b)(ii) expresses as follows :

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 offences and that he is not likely to commit any offence while on bail.

In Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another , (1987) 4SCC 497 the court observed :

The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'. Stroud's Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable' . Reason varies it, its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.

The expression "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. Be that it may, if such a finding is arrived at by the Court, then it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions, the reasonable grounds for believing that during the period of bail, the accused is not guilty of such an offence, the Court still cannot give a finding or assurance that the accused is not likely to commit any such crime. Thus, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case. (Satish Singh, Supra)

So in short ,the usage 'reasonable' translates the aspect as "in accordance with reason". It is ultimately rooted with the question of facts. And the reasonability of a particular act is highly depended on the context and the circumstances.

"BELIEVING THAT THE ACCUSED IS NOT GUILTY OF SUCH OFFENCES"

Section 37 (1)(b)(ii) of the NDPS Act expresses the above mentioned aspect, "… believing that the accused is not guilty of such offences".

The ultimate purpose of the court while entertaining the application for bail under section 37 of the NDPS Act is not to record an observation of not guilty even at an initial stage. 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. (Satish Singh , Supra)

In Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624, It was held :

We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the Narcotic Drugs and Psychotropic Substances Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the Narcotic Drugs And Psychotropic Substances Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.

THE CONDITIONS ARE CUMULATIVE NOT ALTERNATIVE.

The constitutional bench of the Apex Court in Gurbaksh Singh Sibbia and Others v. State of Punjab , 1980 (2)SCC 565 had settled that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.

In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, the Apex Court observed :

The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing, that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "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. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case hand the High Court seems to have completely overlooked underlying object of Section.