Can High Court Grant Bail In NDPS Cases Without Reference To The Conditions Provided Under Section 37 of NDPS Act? Supreme Court To Examine

Additional Solicitor General, Mr. Sanjay Jain appearing on behalf of the Union Government informed a Bench comprising Justices DY Chandrachud and Surya Kant that bail was granted merely on consideration of the facts and circumstances of the case without any reference to Section 37. Accordingly, the Bench recorded -

"The High Court has granted bail despite noticing some of the above circumstances, without any reference to the provisions of Section 37 of the NDPS Act."

It was pointed out by Mr. Jain that the call data indicated that during the course of the investigation the accused was in contact with other co-accused persons.

Section 37 of the NDPS Act deals with the classification of the offences under the Act. It lays down the twin conditions that need to be satisfied in order to secure bail in case of certain offences, including offences involving commercial quantity. The dual test is as under -

1. there are reasonable grounds to believe that the accused has not committed the offence; and
2. whether they are likely to commit any offence while on bail.

The accused was intercepted by the NCB officials while he was travelling in a Maruti Alto 800 car with four other co-accused. 2.75 kg of opium, which is a commercial quantity, was covered from the vehicle.

The Jharkhand High Court had noted from the affidavit filed by the Assistant Solicitor General of India, that the CFSL report clearly indicated that the substance in the possession of the accused was Opium and the matter would fall under the ambit of the NDPS Act. However, on the consideration of the circumstances; and the fact that the accused had no criminal antecedent and was in custody since 25.06,2020, the High Court agreed to enlarge him on bail upon furnishing bail bond of Rs. 10,000 with two sureties.

Case Title: Union of India v. Md. Jamal, SLP(Crl) No. 1596 of 2022

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