Plain & Literal Interpretation Of Section 37 NDPS Act Would Make Bail Impossible: Supreme Court Adopts 'Prima Facie' Test

The Supreme Court of India, while enlarging on bail an undertrial prisoner who was arrested seven years ago under the Narcotic Drugs and Psychotropic Substances Act, 1985 for his alleged involvement in peddling a prohibited substance, observed 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 held, “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.”

Section 37, as the judgement explains in some detail, “curtails the right of an accused to secure bail, and correspondingly fetters judicial discretion". Under this provision, 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 bench, in the judgement authored by Justice Bhat, noted that the apex court had upheld such restrictive conditions for in view of the balance between the two competing values, namely, the right of an accused to enjoy freedom, based on the presumption of innocence, and the interest of the society at large. However, it also conceded that the only manner is which the special condition in provisions such as the one contained in Section 37 of the NDPS Act could be considered within constitutional parameters is by relying on a prima facie determination of the case based on the material available on the record. The bench categorically stated that any other interpretation would result in complete denial of bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. It held:

“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 standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved"

The Court further said :

"The court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have emphasised that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation.”

This observation was made by the bench even as it noted that the apex court in State of Madhya Pradesh v. Kajad [(2001) 7 SCC 673] had said that a ‘liberal’ approach should not be taken with respect to Section 37 of the NDPS Act. The appellant’s claim for bail, the bench stated, must be considered “within the framework of the NDPS Act, especially Section 37”.

The court however, added that the restrictive conditions in special acts have been upheld on the condition that the trial is concluded expeditiously. “When stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly,” the bench said. In this connection, the bench relied on Satender Kumar Antil v. Central Bureau of Investigation 2022 LiveLaw (SC) 577 in which the top court said that Section 436A of the Code of Criminal Procedure, which requires, inter alia, the accused to be enlarged on bail if the trial is not concluded within specified periods, is also applicable to special acts.

“The appellant has been in custody for over 7 years and 4 months. The progress of the trial has been at a snail’s pace: 30 witnesses have been examined, whereas 34 more have to be examined,” the bench noted while holding that bail cannot be denied to an accused charged with offences under the NDPS Act owing to the operation of Section 37 when there has been an undue delay in the trial.

This appeal had arisen out of a case involving the supply of ganja, in which four of the appellant’s co-accused were found to be in possession of more than a hundred kilograms of the prohibited substance and the appellant, one Mohd. Muslim, was subsequently implicated on the basis of the confessional statement of one of the co-accused. The court noted that the appellant was only 23 years old at the time of his arrest. The matter travelled in appeal to the top court after the Delhi High Court rejected his application for regular bail.

Also from the judgment - Bail Can Be Granted In NDPS Cases On Ground Of Undue Delay In Trial Despite Stringent Conditions In Section 37 : Supreme Court

Case Title

Mohd. Muslim v. State (NCT of Delhi) | Special Leave Petition (Criminal) No. 915 of 2023

Citation : 2023 LiveLaw (SC) 260

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