S. 37 NDPS Act| 'Reasonable Grounds' Mean Something More Than 'Prima Facie' Grounds: Calcutta High Court

While interpreting Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Calcutta High Court has recently opined that 'reasonable grounds' to believe that the accused has not committed an offence must be more than mere 'prima facie' grounds. 

Section 37 of the Act deals with classification of the offences contained within the Act and provides for cases where bail can be granted to the accused person. It provides dual conditions for bail in case of certain offences: one, prima facie opinion of the innocence of the accused and two, the accused will not commit a similar offense while on bail.

Justice Bibhas Ranjan De observed, 

"It is axiometic 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."

The Court further noted 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.

"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", the Court underscored further. 

Enumerating further, the Court observed that  enlargement on bail of any person accused of commission of an offence under the NDPS Act must satisfy two conditions- 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. If either of these two conditions is not satisfied, rejection of bail is rule, the Court stated further. 

Background 

In the instant case, on April 7, 2021 one Sanjiv Kr. Intelligence Officer, Narcotics Control Bureau (NCB) attached to Kolkata Zonal Unit (KZU) had received information in relation to trafficking substantial quantity of "Ganja" by one Susanta Dey allies Ravi and Manik Chanrda Das with a car namely TATA ACE GOLD likely to be unloaded in the house of said Susanta Dey and then to supply to one Asim Mirdha.

The said information was reduced into writing and after intimating superior Officer a team of NCB Officers led by Superintendent, NCB (KZU), reached near the vicinity of the house of Susanta Dey. At about 20.45 hours they found the said vehicle approaching the house of Susanta Dey. Thereafter two persons got down from the drivers cabin and started unloading nylon sacks. NCB team intervened and thereafter those two suspects disclosed their identity as Swapon Biswas and Susanta Dey.

Subsequently, the NCB team reached the house of Manik Das (the petitioner) and Asim Mirdha. Though Manik Das was not found in his house but Asim Mirdha was found in the house and on being asked he disclosed that he was to procure the said Ganja through the arrangement made by Susanta Dey. Thereafter, he was also served with notice under section 67 of the NDPS Act and his statement was recorded.

All seized articles were found to be Ganja by the examination report of chemical laboratory, Kolkata and the report was submitted before the  jurisdictional Court on June 25, 202. During investigation Asit Karmakar and Manik Das were arrested and their statements were recorded under section 67 of the NDPS Act. 

Observations 

The Court observed that at the stage of consideration of bail, the Court does not have the power to evaluate evidence. Accordingly, the Court opined that in the instant case, the petitioner has failed to discharge his onus under Section 37 of the NDPS Act and accordingly remarked, 

"It is for the petitioner to establish by cogent and unimpeachable evidence that he was not in conversation or contact with the arrested co- accused through the mobile phones which the NCB relies upon to claim nexus between the petitioner and the other co-accused and the conspiracy between them. Given the mandate of Section 37 of the NDPS Act in the facts of the present case, the petitioner has failed to discharge such onus."

Furthermore, the Court dismissed the contention of the petitioner that pursuant to the Supreme Court judgment in Tofan Singh v. State of Tamil Nadu the statement of co-accused under section 67 of the NDPS Act is of no value and that bail cannot be rejected on the basis of such a statement. 

"Even if we ignore the statement of co-accused under section 67 of the NDPS Act in terms of ratio of the decision in Tofan Singh's case (supra) we are unable to ignore the call details report. At this stage while dealing with a bail application we cannot overlook the complicity of the petitioner in terms of section 10 of the Evidence Act", the Court elucidated further. 

Accordingly, the Court refused to grant bail to the petitioner. 

Case Title: Manik Das @Manik Chandra Das v. The Narcotics Control Bureau (NCB) 

Case Citation: 2022 LiveLaw (Cal) 25

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