Rigour Like S.37 NDPS Act Not Even Prescribed For Grant Of Bail To Murder Accused, Such Is Impact Of Drug Abuse On Society: Kerala High Court

Justice Ziyad Rahman A.A pointed that stringent conditions are stipulated by the legislature for grant of bail under Section 37 of the NDPS Act. It observed that even for Section 302 of the IPC where death penalty is prescribed as the maximum punishment, no conditions as contained in section 37 of the NDPS Act is stipulated for grant of bail. The Court held that bail is not easily given for offences involving NDPS Act for preventing drug consumption and drug trafficking in the society, which is a menace to the society and is now spreading like an infectious disease.

The bench reasoned,

“This is evidently because of the huge impact of drug abuse and drug trafficking on Society as a whole, as the said impact is not confined to any individual or individuals or his/their family. It is something affecting the society as a whole, by corrupting the minds of the young generation. The consumption of drugs, trafficking thereof and their ill effects are like a contagious disease eating up the youth of the country, thereby causing severe adverse impacts on the potential of the country as such. There is a rampant increase in drug trafficking cases nowadays, and not a single day passes without reports of the detection of drug trafficking cases.”

As per 37 of the NDPS Act, Court can grant bail to the accused only if it was satisfied that there were reasonable grounds for believing that he was not guilty of such offence and that he was not likely to commit any offence while on bail.

The accused was arrested on April 28, 2021 for transporting 140 kilo gram of ganja in a pickup van and since then, he has been under judicial detention. He was charged under Section 20 (b) (ii) C, 25 and 29 of the NDPS Act for punishment for offences involving commercial quantity, punishment for conveyance of substance, punishment for abetment and criminal conspiracy.

Advocate Nireesh Mathew argued that the petitioner, who was second accused in the crime, was innocent and has no previous criminal antecedents. The Counsel relied upon various decisions of the Apex Court and Kerala High Court to argue that the petitioner must be granted bail as he was under prolonged judicial detention and more than two years have passed. It was also submitted that there was no purpose to keep the petitioner under detention.

On the other hand, Senior Public Prosecutor C S Hrithwik opposed the bail application and submitted that prolonged judicial custody was no ground to seek for bail u/s 37 of the NDPS Act.

The Court observed that for grant of bail under Section 37, the accused must satisfy two essential conditions. Firstly, reasonable grounds must exist to satisfy the Court that the accused was not guilty and secondly, Court must be satisfied that the accused will not commit any offence while on bail.

“This court cannot ignore the fact that the substantial number of the bail applications coming up before this court are related to the offences under the provisions of the NDPS Act, in which most of the accused are young and bright citizens of our country, who are expected to contribute to the future growth and the wellbeing of the country. Therefore the strict implementation of the provisions of section 37 of the NDPS Act is the need of the hour, and any relaxation thereon will have serious and irreparable ramifications. A message, which is loud and clear, as to the stringent provisions of the NDPS Act, and its strict implementation is required to the sent.”

The Court also added that prolonged judicial detention was not a ground for diluting the rigour under Section 37 of the NDPS Act for the purposes of grant of bail to an accused against whom a strong prima facie case was made out.

Examining decisions placed by the Counsel for grant of bail on prolonged detention under judicial custody, the Court noted that bail was granted to the accused in Mohd Muslim @ Hussain v. State (NCT of Delhi) (2023) upon completion of imprisonment for one-half of the maximum period of imprisonment prescribed for the said offence. The Court observed that none of the decisions cited by the petitioner states that the conditions under Section 37 can be ignored for granting bail.

The Court went on to observe that there was a prima facie case made out against the accused. It noted that the accused was driving the vehicle which carried huge quantity of contraband and it cannot be said that the accused was driving the vehicle without knowledge as the huge quantity makes a voluminous package. Court relied upon various decisions of the Apex Court to state that the intensity of the rigour under Section 37 can be diluted, but cannot be avoided altogether. Examining the facts of the case, Court pointed out that the quantity involved was ten times higher than the commercial quantity fixed by the Schedule of the NDPS Act.

Thus, the Court denied bail to the accused and observed thus:

“When coming to the facts and circumstances of the case, it is to be noted that I have already found that there is nothing on record which would enable this court to record the satisfaction of the twin conditions contemplated under section 37 of the NDPS Act. In such circumstances, I am of the view that this is not a fit case in which bail can be granted to the petitioner.”

Case title: Nandakumar N v State of Kerala

Citation: 2023 LiveLaw (Ker) 415

Case number: Bail Appl. No. 5596 / 2022

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