NDPS Bail Conditions Discriminatory, Irrational And Defy Human Logic, Says Punjab & Haryana HC [Read Order]

“On mere opposition by the Public Prosecutor, to the grant of bail to the accused, this Section castes a duty upon the Court to satisfy itself that there are reasonable grounds for believing: (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail. The entire controversy, in this case, is regarding the above-said two conditions.”

While deciding a bail application in a drug trafficking case, Justice Rajbir Sehrawat of Punjab and Haryana High court ventured an in-depth analysis of constitutionality of the provisions of NDPS Act, which puts conditions on grant of bail.

Though the Judge did not hold that the provision is unconstitutional, as he was only considering a bail application, he made several observations in the judgment to the effect that it is discriminatory, irrational and defy human logic.

Bail under NDPS

The bail provision under NDPS Act (Section 37) reads: “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.”

In his judgment, Justice Sehrawat has focused on the provision castes a duty upon the Court (when prosecutor opposes bail) to satisfy itself that there are reasonable grounds for believing: (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail.

The Contentions

While arguing the bail applications, the counsel for the accused, made a submission before the bench that like any other citizen, the accused is also entitled to be considered for grant of bail under more liberal provisions of Section 439 of Cr.P.C. It was further contended that applying strict provisions of Section 37 of NDPS Act is a discrimination with him. Relying on recent judgment of the Supreme Court in Nikesh Tarachand Shah Vs. Union of India and another, it was contended that a similar provision as contained in Section 45 of the Prevention of Money Laundering Act, 2002 has been held to be unconstitutional by holding that the importance of the `object' of the Act cannot be made a ground to trample the right of life and liberty guaranteed to the petitioner under Article 21 of the Constitution of India.

Discriminatory In View of Nikesh Tarachand Shah Ratio

On the contention based on SC judgment in Nikesh Tarachand Shah, the Court observed that in the said case, one of the grounds for holding the provision of Section 45 of Money Laundering Act, 2002 as unconstitutional was that there was no prohibition in the Money Laundering Act for grant of anticipatory bail. It was observed in the said case that, a person could be granted anticipatory bail under Section 438 Cr.P.C without adverting to the conditions prescribed under Section 45 of Money Laundering Act and he can continue on bail without the Court recording its satisfaction qua the conditions prescribed under Section 45 of the Money Laundering Act.

The court said: “However, if a person is somehow arrested then he cannot be released on bail except after recording of the satisfaction by the Court as to the conditions specified in Section 45 of the Money Laundering Act. Therefore, the conditions prescribed under Section 45 of the Money Laundering Act were held to be discriminatory and arbitrary. In the present case also, there is no prohibition under NDPS Act for grant of anticipatory bail.”

The court further said: “Therefore, a person can get the anticipatory bail irrespective of compliance or consideration of conditions prescribed under Section 37(i)(b) (ii), whereas, if a person is arrested, he cannot be granted bail unless the Court records its satisfaction as to the conditions prescribed under the above said clause of Section 37 of NDPS Act. This can also lead to a thoroughly absurd situation, taking for example, the case of a person who, at initial stage, is just named as an accomplice in a case under the NDPS Act, without there being anything else against him in the FIR; but his co-accused being arrested with commercial quantity. The Court can grant him an anticipatory bail in such a situation and most probably, he is likely to get the concession of anticipatory bail. No compliance of Section 37(1)(b)(ii) would be required. Whereas his co-accused arrested with commercial quantity will not be granted bail by the Court; except after recording its satisfaction as to the conditions specified in Section 37 of NDPS Act. Taking the example further, the former person who has been granted anticipatory bail, can be found to be the person from whom the later had received the seized consignment of commercial quantity and the supplementary challan can be filed against him also, for possessing the same commercial quantity. But in this case, the first person can, very well, continue to be on bail, whereas the second person would be in jail, because a Court may not be able to record the satisfaction as required under Section 37 of NDPS Act. Therefore, in its applicability, like the provision of Section 45 of the Money Laundering Act, Section 37(1)(b)(ii) is rendered discriminatory and hence, arbitrary.”

No Court can record a satisfaction and belief about guilt of an accused the stage of grant of bail

The court observed that the mandatory requirement of the satisfaction of the Court, at the stage of grant of bail, qua the petitioner not being guilty of such an offence militates against the presumption of the innocence of the accused till he is proved guilty.

It said: “This language also creates an inconsistency in itself, because if a Court granting bail records a satisfaction that there are reasonable grounds for believing that the petitioner is `not guilty' of such an offence then this may, at least to some extent, foreclose the option of the trial Court for holding that the petitioner `is guilty' of such an offence although this may or may not be the intention of the legislature, as observed by the Hon'ble Surpeme Court. But the language of Section 37(1)(b)(ii) says so in so many words. As per this language, the "reasonableness" is required only qua existence of grounds for belief of Court but the belief of the Court, as such, qua the accused being not guilty is to be unqualified. No Court can record a satisfaction and belief that a person is `guilty' or `not guilty' of the offence at the stage of grant of bail. What is required to be done after a full fledged trial of an accused cannot be sought to be considered and recorded at the initial stage of trial.”

Uncontrolled, undefined and unlimited discretion of the Public Prosecutor impinging upon the power of the Court to freely decide the question of bail

The court noted that Section 37(1)(b)(ii) makes the application of the conditions mentioned in this provision to be applicable only if the Public Prosecutor so desires. It observed: “As per the language of this Section where the Public Prosecutor does not oppose the bail application then Court is not required to apply its mind for arriving at a satisfaction and belief as prescribed in Section 37(1)(b)(ii), despite the fact that the quantity of contraband involved may be many times more than the commercial quantity. So the application of the conditions mentioned in Section 37(1)(b)(ii) becomes the dependant upon the uncontrolled undefined and unlimited discretion of the Public Prosecutor. This discretion of Public Prosecutor, besides, impinging upon the power of the Court to freely decide the question of bail to the accused, renders the entire process as liable to be discriminatory and un-informed, because Court cannot ensure that the Public Prosecutor has the necessary expertise or sincerity to the cause to take a proper decision, as to taking objection qua bail to the accused.”

Granting bail would tantamount to quashing charge

Another interesting dichotomy was illustrated by the court as follows: While granting bail as per provisions of Section 37(1)(b)(ii), the Court would be required to record, at least, the prima facie, or more than prima facie, satisfaction that the accused is not guilty of the offence alleged against him. And this satisfaction has to be recorded by the Court with reference to the material on record. Whereas at the stage of framing of charge on the basis of same material and record, the Court is to arrive at a prima-facie satisfaction that such a person has committed such offence. In that situation, the accused would be entitled to get the charge quashed, moment he is granted bail by recording satisfaction of the Court as required under Section 37(1)(b)(ii). The accused as a person having protection of legal justness, fairness and rationality can very well put a poser to the Court as to how the Court is restricting its satisfaction to purpose of bail only; despite the satisfaction and belief of the Court being based on the same record and the same being reasonable, and in a given case; even the Court being the same.

Humanly impossible for the court to arrive at reasonable satisfaction qua possible future conduct and mental state of an accused

The court found fault with provision which requires the Court to be satisfied that there are reasonable grounds for declaring that the accused is not likely to commit `any offence' while on bail

The Judge observed: “Moreover, a Court of law would always be well advised to keep in mind that `prophesy is not thy domain'. No Court, howsoever trained, can be "reasonably" satisfied that a person would not commit any offence, maybe even under NDPS Act, after coming out of the custody. It can only be a guess-work, which may or may not turn out to be correct. However, it is not the guess-work which is mandated, but it is `reasonable satisfaction”

It was further observed: “By extension of any human logic, it cannot be said that the Court can record, any degree of satisfaction, based on some reasonable ground, as to whether a person would commit an offence or whether he would not commit an offence after coming out of the custody. Neither the Court would be able to record a satisfaction that the accused would, likely, commit the offence after coming out of the custody, nor would the Court be able to record a satisfaction that the accused would not commit any offence after coming out of the custody. Hence, the second part of Section 37(i)(b)(ii) requires a humanly impossible act on the part of the Court. Since the second part of Section 37 (1)(b)(ii) requires a satisfaction of the Court, which is impossible by extension of any human logic, therefore, this is an irrational requirement. There is no rational way for a Court to record its satisfaction or to arrive at this satisfaction qua possible future conduct and mental state of an accused. Any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guess work, regarding the possible mental state or possible conduct of that person. Even the sophisticated psychological theories of human behaviour, using sophisticated statistical tools of factorization, based on common minimum behavioural factors in large number of people, are still struggling to find a credible answer in this regard.”

The court further observed that though it has been held in various judgments that unless the Court so applies its mind and arrive at a satisfaction qua the conditions prescribed by Section, the Court cannot grant bail to an accused, but in none of the judgments, any adequate determining principles have been spelled out for the Court to be guided with, in exercise of such a power qua further possible events.

In fact, there can be none, if the Court is to record this satisfaction in a `reasonable' manner and on the basis of the `available record' only; and it is not to delve into a pure guess-work. And if the adequate determining principles are not prescribed or decipherable under the Act or cannot be gathered even by human logic then such a procedure has to be treated to be an irrational, undue and unfair procedure for the purpose of inviolability of the right to life and liberty of an individual, the Court said.

Past conduct of a person cannot be reasonably made a basis for future reasonable prediction

The court also said that any record relating only to the past conduct of a person cannot be reasonably made a basis for future reasonable prediction, as against the guesswork, regarding the possible mental state or possible conduct of that person. It said: “It can occur to mind that if a person is a first offender then he is not likely to commit an offence again or that if a person has committed, say; ten offences then he is more likely to commit offence again. But it has to be kept in mind that the second, third, fourth and the Nth offence is always committed by an accused only after first, having committed the first offence. Likewise, there cannot be any `reason' and, therefore, the `reasonable ground' to believe that if a person has committed ten offences; he is again likely to commit the offence. Examples galore in daily life when a criminal calls it a day, say, after 10th crime also. After all scriptures do tell us as to how Maharishi Balmiki turned into a "Maharishi" and created that Epic, which became a treaties of one of the biggest religion of the world. “

Bail Granted

In the facts of the case, the judge observed that there are reasons to come, to a prima-facie, but reasonable satisfaction that the accused is not involved in the crime alleged in the present case.

Granting bail to the accused, the court observed: “But, so far as second part of Section 37(1)(b)(ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit `any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit `any offence' or `offence under NDPS Act' after being released on bail, then this Court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, the satisfaction of the Court in this regard is neutral qua future possible conduct of the petitioner. However, it has come on record that earlier also, the petitioner was involved in a case, but he has been acquitted in that case. So his antecedents are also clear as of now. Moreover, since this Court has already recorded a prima-facie satisfaction that petitioner is not involved even in the present case and that earlier also the petitioner was involved in a false case, then this Court can, to some extent, venture to believe that the petitioner would not, in all likelihood, commit any offence after coming out of the custody, if at all, the Court is permitted any liberty to indulge in prophesy.”