Are All Offences Under NDPS Act Non-Bailable Irrespective Of Punishment Prescribed? Single Bench Of Bombay High Court Refers Question To Larger Bench

In Rhea Chakraborty, the judge relied on Supreme Court Constitutional Bench judgment in State of Punjab v. Baldev Singh (1999) which stated, "Section 37 makes all the offences under the Act to be cognizable and non-bailable". The court relied on this statement to declare that the Stefan Mueller judgment was per incuriam as it had ignored the Apex Court judgment.

At the outset, the court discussed the course of action in case of disagreement between co-ordinate benches of a Court. It said that the single judge in Rhea Chakraborty case had no power to declare Stefan Mueller (supra) as per incuriam. The correct course in this case would be to refer the matter to a larger bench.

In the present matter, the court examined the reasoning in Baldev Singh and found that the question of law considered in the case was whether compliance with section 50 of NDPS Act is mandatory. It was while deciding this question that the judges traced the history of the Act and made the reference to section 37. The court held that it is not a binding precedent as it's a passing observation and not the ratio decidendi of the case. "The decision of a court is a binding precedent if it lays down some principle of law supported by reasons and mere casual observations or directions without laying down any principle of law, would not amount to a precedent", the court said. Hence, Baldev Singh cannot be relied upon for the question of bail.

The court went on to examine the language of section 37 of the NDPS Act and found that on the first impression it appears that it is making all offences under the Act non-bailable due to its heading. However, to arrive at its true meaning, it would have to be read with the non-obstante clause. Section 37(1)(b) prescribes conditions for an accused being released on bail for offence punishable under Sections 19, 24 and 27A of the NDPS Act and for the offences involving commercial quantity. The court considered the legislative history and intent of the aforementioned provision and held, "Had the legislature intended to make every offence, non-bailable, it could have explicitly made it so, like when it intended to make every offence cognizable, it worded itself specifically".

The court said that the NDPS Act has overriding effect on Cr.P.C. "only to the extent of the offences mentioned in Section 37(b)". The provisions of Cr.P.C. will apply in other matters.

"The Heading of Section 37 act like a nom de guerre and if one read Section 37 in its entirety, the impression disintegrates and it becomes apparent that the legislature never intended that every offence under the NDPS Act shall be non-bailable", the court observed.

While the court disagreed with the position taken in Rhea Chakraborty, it had no power to overrule the decision. The court relied on Mahadeolal Kanodia v. Administrator General of West Bengal where the Apex Court said, "quality of certainty in law would totally disappear if judges of the co-ordinate jurisdiction in a High Court start overruling one another's decisions".

In light of the above reasoning the following question was referred to a larger bench of the Bombay High Court –

Whether all offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 are non-bailable, irrespective of the punishment prescribed and irrespective of the fact that many offences do not even mandate imprisonment as a punishment?