All NDPS Offences Are Non-Bailable, Regardless Of Contraband Quantity: Bombay HC [Read Order]

"At that time, Section 37 of that Act read thus:

37. Offences to be cognizable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be cognizable.

Thus, there was no mention in the 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 CrPC. i.e. Part II of its Schedule. It is important to note that the Act, as it stood then in 1985, Section 27 provided punishment for illegal possession in small quantities for personal consumption of a contraband and under that Section the maximum punishment was one year.

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 was felt necessary to make the offences cognizable and non-bailable. This is mentioned in the Statement of Objects and Reasons dated 29.11.1988 for amendments carried out in the Act.

Accordingly, Section 37 was amended. The marginal note of the amendment reads "Offences to be cognizable and non-bailable"; and the Section 37 after 1988 amendment (w.e.f. 29.5.1989)

Section 37 was further amended in the year 2001. At that time, sentencing structure was introduced depending on the quantity of drugs in respect of certain penal Sections of NDPS Act.

Thus, it can be seen that in the year 1985, CrPC. governed the provisions of bail for NDPS offences. By the amendment carried in the year 1989 (w.e.f. 29.5.1989), for the first time, the provisions of CrPC were excluded by specifically introducing a non obstante clause excluding application of CrPC. for grant of bail. If there was inconsistency between the NDPS Act and CrPC,the provisions of NDPS Act were to prevail."

Justice Kotwal also noted that the Act was further amended in 2001. However, significantly the structure of Section 37 did not change. The only major difference was that the provisions for grant of bail were made less severe for offences involving quantities less than the commercial quantity of a contraband. In addition, of course, the rigours did apply to Sections 19, 24 and 27A.

Under the Act, except Sections 26, 27 and 32, all other offences were non-bailable as per the schedule of Cr.P.C. and yet necessity was felt to make offences non-bailable as mentioned in the Statement of Objects and Reasons. The concept of small quantity was already there in the then existing Section 27. Therefore, the amendment to Section 37 in the year 1989 and then in the year 2001 will not be affected by the concept of "small quantity" introduced in the sentencing structure of other penal sections, Court said.

Finally, relying upon the judgment of constitution bench of the Supreme Court in State of Punjab Vs Baldev Singh, Court said-

"In my opinion, the situation is completely clarified by a Constitution Bench of the Hon'ble Supreme Court in the case of State of Punjab Vs. Baldev Singh". 

The counsels had argued that the observations in Baldev Singh (supra) were a fleeting reference and since a further amendment to act was carried out in Section 37 in 2001, thus the observations were not applicable to the present case.

Justice Kotwal did not agree. He said-

"This contention has no force. The Section itself has not undergone any change in its structure. Even in 1999, as the Act stood then, there was no specific sentence that "all the offences were non-bailable. This particular aspect was found to be significant by the learned Single Judge in Stefan Mueller's case (supra). It appears that Baldev Singh (supra) was not placed before the Hon'ble Courts when Stefen Mueller and Minnie Khadim's cases (supra) were decided. Hence, the observations of the Constitution Bench in Baldev Singh (supra) apply to the provisions of Section 37, as it stood then, and also to Section 37 as it stands today after the amendment in the year 2001"

Finally, in conclusion, Court noted that since 1989, the provisions for bail including the Schedule to CrPC, and in particular Part II of Schedule of CrPC, ceased to apply for offences punishable under the NDPS Act. The provisions of NDPS Act in respect of bail provisions were given complete overriding 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 CrPC in respect of classification of such offences. Justice Kotwal observed-

"The same situation continued even after amendment of year 2001 made to Section 37 of the NDPS Act. Wherever there was no inconsistency between the provisions of Section 37 and the provisions for bail under CrPC then only it was permissible to look at the Cr.P.C. for bail provisions. Therefore, other procedural aspects concerning bail provisions, for example, execution of bail bonds etc. will be governed by the provisions of CrPC.

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. Considering all this discussion, I am of the firm view that the observations made by the Hon'ble Supreme Court in Baldev Singh (supra) are binding and all offences under the NDPS Act are non-bailable."

Moreover, Court clarified that a competent officer can effect an arrest if he thinks it proper to arrest such a person. This is provided under Section 42(d), however-

"The officer arresting any such person has to keep in his mind the benevolent provisions of this Act as well. This Act is not only a strict, stringent and harsh Act for drug traffickers, it also shows compassion and leniency in laying down reformative approach under Sections 64A and 71. This reformative approach should never be lost sight of.

Having said this, one cannot overlook the prevailing situation in today's society. The offenders involving smaller quantity or lesser punishment expose themselves to immediate arrest. They cannot claim bail as of right. The Act needs to have this deterrent effect to curb the spread of drug abuse."

The report about detailed arguments raised by lawyers on this point may be read here.