Are All NDPS Offences Non-Bailable? Bombay HC Debates During Rhea Bail Hearing

The hearing of the bail applications of Rhea Chakraborty and four others - who are accused of procuring drugs for the late actor Sushant Singh Rajput - in the Bombay High Court on Tuesday witnessed an interesting debate on a legal point as to whether all offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act are non-bailable.

At the outset, Justice Sarang V Kotwal told the advocates appearing for the applicants that he would like to be addressed on this aspect.

The judge pointed out that heading of Section 37 of the NDPS Act stated: "offences to be cognizable and non-bailable".

The arguments on this point were made by Advocates Taraq Sayed(appearing for Abdel Basith Parihar), Satish Manshinde (appearing for Rhea and her brother Showik) and Subodh Desai (appearing for Sushant's house manager Samuel Miranda).

The essence of their argument was that the quantity of the contraband seized was relevant to determine whether offences are bailable or not and if the offences are punishable with less than three years imprisonment, they ought to be regarded as bailable as per the classification under the Code of Criminal Procedure. So, if the contraband was of small quantity, the offences will be bailable, they argued.

They placed heavy reliance on the judgment of the Bombay High Court in Stefan Mueller vs State of Maharashtra (2010), which held that the NDPS Act did not exclude the considerations of CrPC regarding the classification of bailable and non-bailable offences.

"The title or heading of section 37 of NDPS Act shows that offences shall be cognizable and non-bailable. However, as noted above, in the body of the section, the legislature has only declared that all the offences under the Act shall be non-cognizable, but the legislature has not declared that all the offences under the Act shall be non-bailable. In clause (b) only it speaks about the limitations on granting of bail in addition to the limitations under the Cr.P.C", Justice J H Bhatia observed in that judgment.

The counsels also referred to the judgment of the Delhi High Court in Minnie Khadim Ali Kuhn vs State Nct Of Delhi(2012), which held that the heading of Section 37 will not bind the Court.

"what is described in the heading is not necessarily the law; it is the enacted and substantive provision which has to be applied by the Court. Therefore, the Section heading to Section 37 that all offences under the NDPS Act are non-bailable does not bind the court", Justice Ravindra Bhat observed in that judgment. 

To argue that provisions of CrPC related to bail were applicable to proceedings before the Special Court, reference was made to Section 36A of the NDPS.

However, Justice S V Kotwal seemed to disagree with these arguments. He said that the Constitution Bench decision of the Supreme Court in 'State of Punjab vs Baldev Singh'(1999) observed that all offences under the NDPS Act were non-bailable.

With respect to this, the lawyers submitted that 'Baldev Singh' decision was on the point of Section 50 of NDPS Act and that the interpretation of Section 37 did not fall for the consideration of the SC in that case.

They contended that the observation in Baldev Singh regarding the NPDS offences being bailable was a "passing observation" and a "fleeting remark" having no binding value.

However, Justice Kotwal pointed out that similar observation was reiterated in subsequent SC decisions such as State of Orissa vs Laxman Jena.

Additional Solicitor General Anil Singh, appearing for the Narcotics Control Bureau, submitted that the plain and simple language of the Section should be considered, and when the provision clearly said that the offences are non-bailable, there was no scope for any contrary interpretation.

Section 37 started with a non-obstante clause to exclude the application of CrPC, submitted the ASG.

Justice Kotwal also observed the non-application of the rigour of Section 37 and the classification of offences as bailable were two different concepts.

The Court has reserved judgment on the applications.

Also read other reports about the hearing :

If Someone Conceals Drug Consumption By Another,That Amounts To Harbouring Offender: NCB Tells Bombay HC

'How Can Supply Of Drugs To Sushant Be Proved When He Is No More?' Lawyer Submits In Rhea Bail Hearing