Satisfying The Rigors Of Section 37 NDPS Act Is Like Candling Infertile Eggs: HP HC [Read Judgment]

Satisfying the rigors of Section 37 of the NDPS Act is candling the infertile eggs, remarked the Himachal Pradesh High Court while dismissing an anticipatory bail application.

Justice Anoop Chitkara also summarized the law relating to rigors of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, while he dismissed a bail application filed by a person accused of committing offences under Sections 18, 20 & 29 of the Act.

Referring to the Section 37 of the Act, the Court noted that, for granting bail, the following conditions are to be met, (i) there are are reasonable grounds for believing that the accused is not guilty of such offence (ii) that he is not likely to commit any offence while on bail are satisfied. The provision also states that no person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity ] shall be released on bail or on his own bond, unless these conditions are met.

In the judgment, the Judge has surveyed various Supreme Court judgments in this regard and summarized the principles enunciated in them as follows:

1. The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].
2. In case the Court proposes to grant bail, two conditions are to be mandatorily satisfied in addition to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738].
3. Apart from granting opportunity to the Public Prosecutor, the other twin conditions which really have relevance are the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721].
4. The satisfaction contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substantial probable causes for believing and justifying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].
5. Twin conditions of S. 37 are cumulative and not alternative. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549]. f) If the statements of the prosecution witnesses are believed, then they would not result in a conviction. [ Babua v. State of Orissa, (2001) 2 SCC 566].
6. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624]
7. While considering the application for bail concerning Section 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798].
8. In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705].
9. Bail must be subject to stringent conditions. [Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84].  

The judge further observed:

"The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches would be detailed and paintings with a few strokes. Satisfying the rigors of S. 37 of the NDPS Act is candling the infertile eggs."

Examining the facts of the case, the Court held that it  has reasons to believe that the accused has failed to cross the hurdle of S. 37 of NDPS Act, and is not entitled for bail. The accused had also sought bail on parity on the ground that a co-accused was granted bail. "The evidence against Satish Singh was lacking and it had crossed the rigors of S. 37 of NDPS Act, so far as it relates to Satish Singh. The line of distinction between the evidence collected against Satish  Singh and the present bail petitioner is not thin but huge.", the Court added.

NDPS Bail Conditions Discriminatory, Irrational And Defy Human Logic, P&H HC Judge had said. 

Similar observation was made by Justice Rajbir Sehrawat of Punjab and Haryana High court who had termed the conditions stipulated in Section 37 of NDPS Act as ' discriminatory, irrational and defy human logic.'  He opined that the mandatory requirement of the satisfaction of the Court, at the stage of grant of bail, qua the petitioner not being guilty of such an offence militates against the presumption of the innocence of the accused till he is proved guilty. The uncontrolled, undefined and unlimited discretion of the Public Prosecutor impinging upon the power of the Court to freely decide the question of bail, the judge had said. No Court, howsoever trained, can be "reasonably" satisfied that a person would not commit any offence, maybe even under NDPS Act, after coming out of the custody. It can only be a guess-work, which may or may not turn out to be correct. However, it is not the guess-work which is mandated, but it is `reasonable satisfaction"

SC Said No To Liberal Approach In NDPS Bail Matters

In a judgment passed earlier this year, the Supreme Court had observed that there cannot be liberal approach in the matter of bail in NDPS Cases. The bench of Justice Indu Malhotra and Justice Ajay Rastogi observed that the Court has to record a finding mandated under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the same is a sine qua non for granting bail to the accused under the NDPS Act.

Also Read: Section 37 NDPS Act : Principles For Grant Of Bail For Offences Involving Commercial Quantities

Case name: Om Parkash vs. State of Himachal Pradesh

Case no.: Cr.MP(M) No. 1084 of 2020

Coram: Justice Anoop Chitkara

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