Understanding Section 37 NDPS Act
The Delhi High Court held in the case of LAXMAN THAKUR v. STATE (GOVT. OF NCT OF DELHI) held that Section 37 states that bail should not be granted to an accused unless the accused is able to satisfy twin conditions i.e. reasonable ground for believing that the accused is not guilty of such an offence and that the accused would not commit an offence or is not likely to commit an offence, if granted bail.
The provision of Section 37 of The Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under:-
37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, 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.
(2) 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 (2 of 1974) or any other law for the time being in force, on granting of bail.
The section firstly states that every act given under the NDPS act is a cognizable offense. A Cognizable Offence is defined under Section 2(c) of The Code of Criminal Procedure as an offence in which a police officer may arrest without an arrest warrant, in accordance with the First Schedule of the code. This is to mean that legislature treats the offences under this act with a great deal of seriousness and gravity.
Secondly, the offences generally are of non-bailable nature which is subject to the limitations and exceptions prescribed under Section 37 of NDPS Act and The Criminal Procedure Code.
It has been held by the courts that Section 37 of the Act is attracted only when the offence is punishable with a punishment of five years or with a punishment that may extend up to five years.
The Supreme Court observed in the case of Narcotics Control Bureau vs Mohit Agarwal on 19 July, 2022 that the expression "reasonable grounds" used in Section 37(1)(b) under NDPS Act would mean credible, plausible grounds for the Court to believe that the accused person is not guilty of the alleged offence. The court also said that, under Section 37 NDPS Act, bail cannot be granted merely on the ground that nothing was found from the possession of the accused. In this case the Apex Court held that for arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused, SLP (Criminal) No. 6128-6129 OF 2021 person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
In the case of Union of India v. Thamisharasi and Ors., (1995) the Apex Court held that Section 167 of Code of Criminal Procedure, 1973 (CrPC) and Section 37 of the NDPS Act are not in conflict with each other. It held that the limitations under Section 37 of the NDPS Act are not attracted when the grant of bail is statutory under Section 167 of CrPC. The case also brought out a distinction between Section 143 of the CrPC and Section 37 of the NDPS Act. It laid down that the later was a more stringent provision. Under Section 37, the onus is on the accused to prove that he is not guilty while under the CrPC, the burden is on the prosecutor to prove that the accused is indeed guilty and thus he should not be granted bail.
In the case of Satpal Singh v. State of Punjab, (2018) the Hon’ble Supreme Court held that in the cases related to drugs, an order should be passed after taking Section 37 of the NDPS Act into consideration.
Offences for which Section 37 is invoked
Chapter V of the NDPS Act lays down the provision for offences and penalties. All offences committed under this act would be non-cognizable offences under Section 37 of the same Act. Following are the offences under this Act. Section 25 of the Act provides punishments for the use, purchase, sale, transportation, import or export of warehoused poppy. Section 16 of the Act lays down the penal purposes for the use, purchase, sale, transportation, imports or exports of coca leaves. Section 17 lays down the provisions for punishment for the offences related to prepared opium while Section 18 provides penal provisions for opium and opium poppy. Section 19 of the Act also lays down the provisions for offences related to opium. It provides that if any authorised cultivator illegally deals with opium, he shall be punished for a rigorous punishment of not less than 10 years and not more than 20 years. Section 20 provides to punish those who commit offences related to cannabis. Section 21 of this Act lays down penal provisions for those dealing in manufactured drugs. Section 22 and Section 23 deal with offences related to narcotic and psychotropic substances. Section 22 punishes for other offences related to psychotropic substances, Section 23 specifically lays down punishment for the import and export of such drugs. Section 27 of the Act lays down provisions for punishment if the drug consumed is in the form of cocaine, morphine, diacetyl-morphine or any other narcotic or psychotropic substance.
Recently the Himachal Pradesh High Court in the case of Deep Raj @ Neetu v. State of Himachal Pradesh emphasised the stringent provisions concerning bail under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 cannot be invoked in perpetuity to dilute the right of the accused to an expeditious trial.