Aryan Khan And Others Denied Bail - Can A Magistrate Grant Bail For Offences Under The NDPS Act?

1. Whether a Magistrate can consider a plea of bail in case of an offence which is exclusively triable by a Sessions or Special Court;
2. Whether a Magistrate would be empowered to grant bail under the Narcotic Drugs and Psychotropic Substances Act?

Powers of Magistrate to grant bail

Section 437 of the CrPC empowers the Magistrate to release on bail a person accused of a non-bailable offence unless there are reasonable grounds for believing that such person is guilty of an offence punishable with death or imprisonment for life; and/or if such person had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or had been previously convicted on two or more occasions for a non-bailable and cognizable offence.

In the Anvay Naik suicide case, Arnab Goswami (editor-in-chief of Republic TV) was arrested by Raigad Police and committed to custody pursuant to a First Information Report which was lodged for having abetted the suicide. An allegation of abetment to commit suicide^[1] carries a maximum term of 10 years which is exclusively triable by a Court of Sessions^[2]. When the matter came up for hearing before the Bombay High Court^[3], the Petitioner argued that the Magistrate was initially not ready to hear his plea of bail on the ground that the offence of Section 306 of Indian Penal Code was punishable for a maximum term of 10 years and was triable exclusively by a Court of Sessions. When Goswami approached the Bombay High Court in writ jurisdiction for seeking his release, the bench observed that no case for exercising extraordinary jurisdiction was made out for releasing Goswami on bail. It was held-

"In our opinion, the petitioner has an alternate and efficacious remedy under Section 439 of the Code of Criminal Procedure to apply for regular bail. At the time of concluding the hearing of Applications, we had made it clear that if the Petitioner, if so advised, to apply for regular bail under Section 439 of the Code of Criminal Procedure before the concerned Court, then, in that case, we have directed the concerned Court to decide the said Application within four days from filing of the same."

Section 439 of CrPC deals with Special Powers of High Court or Court of Sessions regarding bail. By the said observation, the High Court hinted that the remedy of the accused would lie only before the Sessions Court or High Court under Section 439 of the Code.

In Sanjay Malshe v. State of Maharashtra, the Bombay High Court while dealing with the powers of Magistrate vis-à-vis grant of bail in non-bailable offences had observed that while the Magistrate was empowered to remand the accused to the custody even in Sessions Triable offences until the conclusion of the committal proceedings, the Magistrate's power to grant bail was not restricted in any manner. It was essentially held that merely because an offence was triable by Sessions Court or because the offence was heinous, it did not affect the powers of the Magistrate to grant bail.

This view taken by the Bombay High Court in Sanjay Malshe (supra) was not considered in Arnab Goswami (supra) and hence the observation rendered in Arnab Goswami's case cannot be considered good law.

NDPS Act: Modified provisions of remand and bail

Section 36A(1)(b) of the NDPS Act is a non-obstante provision stating that notwithstanding anything contained in the CrPC, where a person accused of or suspected of the commission of an offence under the NDPS Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the CrPC, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.

Provided that in cases which are triable by the Special Court where such Magistrate considers:

• (i)when such person is forwarded to him as aforesaid; or
• (ii)upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction.

Section 36A(1)(c) empowers the Special Court to exercise all powers which the Magistrate is empowered to exercise under Section 167 of the CrPC.

Placing reliance on Section 36A(1)(b) of NDPS Act, the Bombay High Court in Sanjay Malshe (supra) observed that the legislature in such statutes had thought it fit to bring in an embargo over the power of Magistrate in matters of bail as the section enunciated that if the Magistrate did not consider remand of an accused to custody to be necessary for an offence under the NDPS Act, he could not grant the bail, but would have to direct the person to be forwarded to the Special Court having jurisdiction. It was further observed-

"The exclusive jurisdiction of the Special Court to try the offence that by itself could not be criteria to decide about the absence of the powers to the Magistrate to grant bail in case of offences under the said Act. Unless the special statute which gives exclusive jurisdiction to the Special Court for the trial of the offences thereunder makes a specific provision like in the nature of Section 36-A of the NDPS Act or on similar lines, specifically excluding the powers of the Magistrate to grant the bail to the persons accused of commission of such offence, there cannot be any restriction on the powers of the Magistrate to grant the bail, merely because the person is accused of the offence punishable under the said Act, unless, of course, the offence is punishable with death or life imprisonment."

In Rhea Chakraborty v. Union of India, the Bombay High Court held that all offences under the NDPS Act were non-bailable and the earlier view in Stephan Mueller v. State of Maharashtra indicating otherwise could not hold the field as it been rendered without considering the observation of the constitution bench in State of Punjab v. Baldev Singh.

Conclusion

Referring to Sanjay Malshe (supra), it is manifest that a Magistrate can consider a request for bail in case of an offence which is exclusively triable by a Sessions or Special Court. Thus (1) can be answered in the affirmative. To answer (2) – if a provision pari materia to Section 36A(1)(b) of NDPS Act exists in a statute, it would definitely be an embargo for the Magistrate to entertain a request for bail. Only in case of non-existence of such a provision can the Magistrate consider and decide such a plea.

To conclude, the Magistrate was justified in rejecting the bail plea of accused Aryan Khan and others on the ground of maintainability.

Article Written by Advocate Gaurav Thote

Views are purely personal.

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