Consumption Of Narcotics – Bailable Or Non-Bailable?

Narcotic drug is defined to mean coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured drugs^[2] and psychotropic substance is defined to mean any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule to the NDPS Act^[3].

Section 27 of the NDPS Act makes the consumption of specified narcotic drugs or psychotropic substances punishable with rigorous imprisonment for a term which may extend to one year and six months for consumption of non-specified narcotic drugs or psychotropic substances. By virtue of the term of imprisonment prescribed for the offences listed under Section 27 of the NDPS Act are bailable in accordance with the applicable provisions of the Code of Criminal Procedure 1973 ("CrPC")^[4].

However, the heading / marginal note to Section 37 of the NDPS Act^[5] states "Offences to be cognizable and non-bailable". The marginal note and the 'non-obstante' clause appearing in Section 37 of the NDPS Act has therefore given rise to a very interesting question of whether all offences listed under the NDPS Act are non-bailable.

The High Court of Judicature at Bombay in Stefan Mueller v. State of Maharashtra through Senior Inspector of Police, Haveli Police Station, Pune^[6] examined the specific question in light of section 37 of the NDPS Act. The Court referred to the judgement of Privy Council in Thakurain Balraj Kunwar & Anr. vs. Rae Jagatpal Singh^[7] and the judgement of the Hon'ble Supreme Court Judgement in M/s. Frick India Ltd. v. Union of India & Ors.^[8] wherein it was held that marginal notes to the sections of an Act of Parliament (a) cannot be referred to for the purpose of construing the Act and that headings prefixed to sections or entries cannot control the plain words of the provision; (b) cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous.

The Court also observed that one may get an impression that all the offences under the NDPS Act are cognizable and also non-bailable, however, in the body of the section, the legislature has only declared that all the offences under the Act shall be cognizable, but the legislature has not declared that all the offences under the Act shall be non-bailable. The offence under Section 27 is punishable with imprisonment which may extend to six months and in view of the punishment prescribed, it falls in third entry in part II of the Schedule I of CRPC and, therefore, will be bailable.

The High Court of Delhi also in the case of Minnie Khadim Ali Khun v. State NCT of Delhi^[9] had a chance to examine this question. In this case it was contended that the heading or title in Section 37 had limited role to play. The Parliament consciously refrained from declaring that all offences under the Act shall be non-bailable, therefore, the provisions of Cr.P.C. will have to be looked into to find out whether offences under the NDPS Act are bailable or not.

The state however contended that the parliamentary intention to override the normal provisions which enable grant of bail, are made explicit on a cumulative reading of Section 37 of NDPS Act. The Court should not read the title to the provision, but also the enacting part which begins with a non-obstante clause, amply clarifying that the law makers intended that even in cases where the offence was bailable in terms of provisions, the special provision of Section 37, by way of additional conditions had to be complied with by the court. The provision of Section-37 (2) viz., no person accused of an offence shall be granted bail without the public prosecutor being given the opportunity to oppose, is to be complied with in every case where the accused is alleged to have committed any of the offences under the Act, and hence even if the punishment is for a prison term which can extend for a period of 6 months, i.e. less than 3 years, it is non-bailable.

Justice S Ravindra Bhat after tracing the evolution of the law of NDPS explained the scope of interpreting non-obstante clauses and referred to the case of The Dominion of India & Anr. v. Shrinbai A. Irani and another ^[10] wherein the Hon'ble Supreme Court of India held that "...Although ordinarily there should be a close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment".

Further he referred to the cases of Central Bank of India v. State of Kerala and others^[11] and ICICI Bank Ltd. v. SIDCO Leathers Ltd. & Ors^[12] wherein the Hon'ble Supreme Court held that when the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A non-obstante clause must be kept confined to the legislative policy and it can be given effect to, to the extent the Parliament intended and not beyond it and that in construing the provisions of a non-obstante clause, it is necessary to determine the purpose and object for which it is enacted. A search has, therefore, to be made with a view to determining which provision answers the description and which does not.

In light of the above, the Hon'ble Judge while observing that the Court has to look beyond the heading or title of a provision, and see what is actually enacted by it, concluded that what is described in the heading to Section 37 that all offences under the NDPS Act are non-bailable does not bind the court. The specific reference in Section 37 (1)(b) to only three provisions, i.e. Sections 19, 24 "or" 27A, and the offences dealing with commercial quantities, clearly points to those offences and no other, being the subject matter of additional bail conditions. Section 37 (2) is also instructive, in that it says that the conditions in respect of offences covered by Section 37 (1) (b) are in addition to other provisions of the CrPC. Thus, if the offences are punishable like in the case of possession of small quantities of the concerned substance or drug, the suspect or accused is entitled to bail, and if she or he is prepared to give, has to be granted bail, in terms of Section 436 of the Criminal Procedure Code, without the necessity of his (or her) seeking it in the Court.

The Hon'ble Judge directed the Police Commissioner to issue necessary guidelines and instructions to all police officials bringing to their notice the effect of this judgment, so that they are suitably instructed in future cases, wherever offences are bailable, to release the suspects wherever bail is offered in terms of Section 436 Cr.PC.

A similar question was posed before the Hon'ble High Court of Kerala in Robul Saikh v. State of Kerala^[13]. Justice B Kemal Pasha held that "Going by the caption of Section 37 of the N.D.P.S. Act, at the first blush, it may appear that all the offences under the N.D.P.S. Act are non bailable and cognizable. At the same time, Section 37(1)(a) says that every offence punishable under that Act shall be cognizable. There, the legislature has not incorporated the term 'non bailable' also. The caption of the Section should precisely be one representing the contents of the Section. When the detailed provision contained under Section 37 of the Act do not show that every offence under the Act are non bailable, especially when it has been clarified in the Section that every offence punishable under that Act is cognizable, it has to be noted that the legislature has never thought of making every offence under the Act as non bailable. Therefore, it should go by the general law as per the Code of Criminal Procedure, to decide as to whether an offence under the N.D.P.S. Act is bailable or not. When the offence under Section 20(b)(ii)(A) of the N.D.P.S. Act is punishable with rigorous imprisonment for a term which may extend to one year, or with fine or with both only, it has to be noted that the said offence is necessarily a bailable one."

In coming to the above conclusion the court referred to the judgement of Shaji v. Kerala State^[14] and Mathew v. State of Kerala^[15] Wherein the Court has held that where there is an ambiguity in the caption of a particular section in an enactment with the contents of that particular section, the contents of the section have to be followed and one should not go by the caption alone to arrive at the correct meaning of the provision in the enactment.

The High Court of Calcutta in the case of In Re: Dhiman Dutta Alias Chintu^[16] and the High Court of Tripura also in the case of Sri Bapan Roy v. The State of Tripura^[17] held that headnote cannot modify/alter the plain meaning of a statutory provision when the statute is clear and unambiguous and that Section 37 of the Act has to be construed taking into account the whole contents enumerated and the objects the legislatures intended to achieve, and reading Section 37 in this perspective, all offences having punishment prescribed for less than 3(three) years would be cognizable and bailable, since the said offences are covered by the category of third entry of part-II of the Schedule of the Code of Criminal Procedure, 1973.

The Hon'ble High Court of Judicature at Bombay in the case of Rhea Chakroborthy v. Union of India^[18] however took a contrary view and held that all offences under the NDPS Act are non-bailable. Justice S V Kotwal provided reasons to differ from the earlier judgement of Stefan Mueller and the Delhi and Kerala High Court are as under:

1. When the NDPS Act was brought into force, section 37 as it then stood only said "offence to be cognizable". There was no mention in the NDPS Act itself as to whether the offences would be bailable or non-bailable. Therefore, obviously to consider this aspect, recourse needed to be taken to the provisions of Cr.P.C. Section 27 provided punishment for illegal possession in small quantity for personal consumption of a contraband and under that Section the maximum punishment was one year. Similarly, Sections 26 and 31 provided lesser punishments. All the other offences, provided punishment of rigorous imprisonment for a term which was not less than ten years. Thus, there were bailable as well as non-bailable offences mentioned under the NDPS Act in 1985, applying Part II of Schedule I of CrPC and CrPC governed the provisions of bail for NDPS offences.

2. Subsequently, the legislature felt that though the major offences were non-bailable by virtue of level of punishment, on technical grounds the drug offenders were being released on bail. Therefore, it felt necessary to make the offences cognizable and non-bailable as per the 1989 amendment. The marginal note of the amendment reads "Offences to be cognizable and non-bailable".

3. The non obstante clause in Section 37 plays a very important part in construction of that Section. Originally in the year 1985 this non obstante clause operated to exclude the provisions of Cr.P.C. only to make all offences cognizable. At that point of time, Section 37 declared that all the offences were cognizable notwithstanding anything contained in the Cr.P.C. In the year 1985, the applicability of the Schedule to Cr.P.C. was not excluded. For the first time in the year 1989, when the amended provision of Section 37 was brought into force, the bail provisions of Cr.P.C. were brought under the non obstante clause of Section 37 of NDPS Act. Therefore, since 1989, the provisions for bail including the Schedule to Cr.P.C., and in particular Part II of Schedule I of Cr.P.C., ceased to apply for offences punishable under the NDPS Act. The provisions of NDPS Act in respect of bail provisions were given complete over-riding effect and from that point onwards the classification of offences were strictly governed by Section 37 of the NDPS Act to the exclusion of all the provisions of Cr.P.C. in respect of classification of such offences.

4. The NDPS Act was further amended in 2001, however the structure of Section 37 did not change.

5. The Constitutional Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh^[19] observed that Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. When the Supreme Court decides a principle, it would be the duty of the High Court or a sub-ordinate Court to follow the decision of the Supreme Court. Hence, there is no further scope to argue that only some offences under the NDPS Act are non-bailable and other offences where punishment is less than three years are bailable as per Part II of the Schedule I of Cr.P.C.

6. If the accused claims bail as of right in case of possession of small quantity then no investigation can be carried out to find the source and trade of the contraband. This defeats the object of the Act.

With all due respect to Justice S V Kotwal, the observations and findings in the Rhea Chakroborthy case in relation to all offences under the NDPS Act being non-bailable is incorrect for the following reasons:

1. Section 37 originally stated all offence to be cognizable. The legislative intent to amend the NDPS Act in 1989 can be gathered from the Statement of Objects and Reasons dated 29.11.1988 for amendments which reads as under:

"In recent years, India has been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt."

"Clause (vii) of second paragraph of Statement of Objects and Reasons reads:

"2. A Cabinet Sub-Committee which was constituted for combating drug traffic and preventing drug abuse, also made a number of recommendations for strengthening the existing law. In the light of the recommendations of the Cabinet Sub- Committee and the working of the Narcotic Drugs and Psychotropic Substances Act, in the last three years, it is proposed to amend the said Act. These amendments, inter alia, provide for the following :-

(vii) to provide that the offences shall be cognizable and non-bailable."

Accordingly, Section 37, with effect from 29 May, 1989, stood amended to provide that

(a) Notwithstanding anything contained in the Code of Criminal Procedure, 1973;

(b) every offence punishable under this Act shall be cognizable;

(c) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail; and

(d) the limitations on granting of bail specified in clause (b) of sub-section(1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.

The amended section only provided for additional grounds for consideration of bail in addition to the CrPC under the NDPS Act and did not make the provisions of CrPC inapplicable.

2. It is not true that the 2001 amendment to the NDPS Act did not change the structure of Section 37. The amendment specifically dilutes the rigors of the NDPS Act dealing with offences involving small quantities^[20] and all other offences and makes only offences under section 19^[21], 24^[22] and 27A^[23] and offences involving commercial quantities non-bailable^[24] and further the grant of bail for the said offences is subject to the right of the public prosecutor to oppose the same.

3. The Constitutional Bench of the Supreme Court in the case of State of Punjab v. Baldev Singh^[25] observed that Section 37 makes all the offences under the Act to be cognizable and non-bailable, however the observation made by the Constitutional Bench at paragraph 4 has to be read along with the last sentence at paragraph 4 which states "For the purpose of this batch of cases we are primarily concerned with Chapter V in general and Sections 35, 41, 42, 43, 50, 51, 54 and 57 of the Act in particular." In light of the same it would be incorrect to state that the Hon'ble Supreme Court considered as to how all the provisions of the NDPS Act are to be interpreted when in fact the court itself has restricted its judgement to the above sections and the statement with observation with regards to Section 37 is merely a 'fleeting reference'.

4. A three Judges Bench of the Hon'ble Supreme Court in the case of Municipal Committee, Amritsar v. Hazara Singh^[26] held that "Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Article 141." Hence the fleeting reference by the Hon'ble Supreme Court in the case of State of Punjab v. Baldev Singh cannot be said to have laid down the law as regards all offences being non-bailable.

5. The Hon'ble Supreme Court in Maktool Singh v. State Of Punjab^[27] while dealing with Section 32A of the NDPS Act viz., whether sentence of convicted person under NDPS Act can be suspended during pendency of appeal held that Section 32A exempted cases falling under Section 27 of the Act by putting the words other than Section 27 within a parenthesis because Section 27 deals with offences of far lesser degree when compared with the other offences in the Act. The Hon'ble Supreme Court in fact observed "We are not disposed to question the wisdom of Parliament as to why Section 26 was also not brought within the exemption". From the above it is evident that when Section 37 specifically deals only with Section 19, 24 and 27A there is no reason to by implication or by any other reading to bring within its fold all offences under the NDPS Act which have otherwise been deliberately omitted.

Bail is a matter of right - jail is an exception^[28]. When a person is arrested for any bailable offence, his right to claim bail is absolute and indefeasible and if the person accused is prepared, the court or the police, as the case may be, will be bound to release him on bail^[29].

Inspite of several courts clarifying that an offence under Section 27 of the NDPS Act is bailable, including the most recently judgement of the Hon'ble High Court of Telangana in Criminal Petition No. 837 of 2022, the police continue to arrest consumers and the magistrates send them to judicial remand, without examining the correct position of law, resulting in an unjust deprivation of the statutory right to bail and consequently the fundamental right to life and liberty. It is therefore imperative that the quandary surrounding Section 37 of the NDPS Act be addressed immediately and appropriate clarifications/directions are issued to police department, to release the accused when bail is offered, as was done by Hon'ble Justice Ravindra Bhat in the landmark case of Minnie Khadim Ali Khun v. State NCT of Delhi^[30].

Author: Mr. Duvva Pavan Kumar is an advocate based out of Hyderabad practising before the High Court and NCLT. He is the founder of The Law Chambers (https://thelawchambers.in/). He was assisted by Nikhita Guduru. Views are personal.

[1] Assisted by G. Nikhita Hari