NDPS Act | In Case Of Prolonged Incarceration, Liberty Will Override Embargo Under Section 37 : Supreme Court Grants Bail

The Supreme Court, while considering a bail application in an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 held that in case of prolonged incarceration, conditional liberty will override the statutory embargo under Section 37 of the Act. The Court made this observation stating that prolonged incarceration is against fundamental right guaranteed under Article 21, ie, protection of life and personal liberty.

A division bench of Justice Surya Kant and Justice Dipankar Datta was considering the bail application of a man who had been one of the occupants of a truck where 247 kg of Ganja was recovered. The Court noted that the man had already spent more than three and a half years in custody. It also noted that trial in the case will take time to conclude.

The Court while applying the twin conditions for bail under Section 37 of the NDPS Act, observed:

“As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

However, since the Petitioner was not a resident of Orissa, where he had been arrested, the Court imposed the condition that he shall be released on bail on his furnishing bail bonds, by producing two local sureties before the Trial Court. 

Advocate Shyam Manohar Mishra appeared for the petitioner.

The Supreme Court had also recently observed in Mohd. Muslim v. State (NCT of Delhi) 2023 LiveLaw (SC) 260 that a plain and literal interpretation of the rigorous conditions under Section 37 would make granting of bail impossible.

A division bench of Justices S Ravindra Bhat and Dipankar Datta had observed that “A plain and literal interpretation of the conditions under Section 37 would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well.”

The Court had made this observation while enlarging on bail an undertrial prisoner who was arrested seven years ago under the NDPS Act for his alleged involvement in peddling a prohibited substance. 

Under Section 37 of the NDPS Act, the Court can grant bail to an accused only on being satisfied that there are reasonable grounds for believing that they are not guilty of such an offence and that the accused is also unlikely to commit any offence after being released from jail.

“The only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act", the Court had observed in the the said judgment.

In Mohd. Muslim, the Court further observed that undue delay in trial can be a ground to grant bail to an accused, despite the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985.

Case Details: Rabi Prakash V. The State of Odisha, Special Leave to Appeal (Crl.) No(s).4169/2023

Citation : 2023 LiveLaw (SC) 533

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