Whether Section 37 of NDPS Act Renders the Provision of Anticipatory Bail Infructuous

By Nayan Grover

Narcotics Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) is a Sue Generis Code and thus anything provided in this act will prevail over the general law. The offences under the NDPS Act are considered to be of more serious nature than usual and also viewed with more scrutiny by the courts. Cases under the NDPS Act,1985 cannot be dealt with by any ordinary Court, not even by the Court of Sessions. Section 36 of the NDPS Act,1985 calls for the formation of special courts for cases under the NDPS Act to ensure speedy trial and proper judicial scrutiny over them. The judge presiding over the Special Court must have been an immediate Sessions or Additional Sessions judge or of the higher level before the appointment as per Section 36(3) of the NDPS Act, 1985. This is to ensure high standards of judicial scrutiny over the matters. The Special Courts exercise same power and jurisdiction as the Court of Sessions do over general offences as provided by Section 36 C of the Act. The High Courts shall have the same authority as they do while dealing with other offences as per the Section 36 B of the Act. All offences under the NDPS Act are declared to be of Cognizable nature under Section 37(a) of the Act. This implies that for even a small offence committed under NDPS Act an accused can be placed under police custody immediately without a warrant. The special nature of the formation of Courts and the offences under the NDPS Act are highlighted to present the conflicting nature of the bar put by Section 37 of the NDPS Act against granting of Anticipatory bail.

Section 37 barring the use of general guidelines

General guidelines for granting an anticipatory bail were provided by the Supreme Court in the case of Gurbaksh Singh Sibia & Ors. Vs. The state of Punjab, (1980) AIR 1632, and reaffirmed while delivering the judgement in Siddharam Satlingappa Mhetre vs the State of Maharashtra, (2011) (1) SCC 694.  Under NDPS Act the non–bailable offences are defined under Section 37 of the Act. The same section puts a stringent restriction over those committing non – bailable offences under the NDPS Act. Subsection (b) (ii) of the said section imposes an extra restriction apart from the general guidelines which disallow the court to grant bail until it is completely satisfied that the accused has not committed the offence. Now at such pre-stage of a trial, no court can come to such conclusion. Courts at this stage of the trial don’t go much deep into the evidence and arguments and are just looking at things forming a prima facie case. Even the Supreme Court in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 SCC 549, stated that certain aspects like non-compliance of the procedure, discrepancies in the evidence presented, etc cannot be examined properly at the for an anticipatory bail or bail stage of hearing. And these aspects are really intricate in establishing the innocence of accused in NDPS cases. So, the imposition of this extra restriction makes the option of Anticipatory Bail infructuous for cases under the NDPS Act.  This renders the Right to Personal Liberty of accused more prone to being violated. When there are already set established guidelines by the constitutional bench of Supreme Court in the case of Gurbaksh Singh Sibia & Ors. Vs. The state of Punjab, (1980) AIR 1632, having more restriction to the provision seem unnecessary.

Cases with Recovery or Direct Involvement of Accused

In cases dealing with offences under the NDPS Act, most cases begin with the recovery of some contraband made by some investigative agency. Once the recovery is made from a person, the burden of proof is reversed for establishing a prima facie case. Section 54 of the NDPS Act calls for a presumption that the accused has committed an offence about the material that is found in his possession until and unless the contrary is proved.

This was asserted by the Hon’ble Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyed & Ors. Vs. The State of Gujrat, 1995 SCC (3) 610 where it stated – “ Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it “for the possession of which he fails to account satisfactorily “”[1] The same is followed by all the trial courts and the high courts.

Thus, if the recovery of some contraband of commercial quantity is made from a person or place which is related to him, he can’t get a successful order of anticipatory bail.

Cases Based on Disclosure

There still remains a minute chance of grant of Anticipatory Bail in cases where there has been no direct recovery from the accused but the name of the accused has come up during disclosure by a witness or co-accused in the crime. There have been cases wherein such situations certain High courts have granted the Anticipatory Bail provided that at the time of the hearing there was no corroborative evidence like money transfer etc that could even slightly hint towards the involvement of accused was not available.

In the case of Amit Ranjan vs Narcotic Control Bureau, AIROnline 2019 Del 1066, the Delhi High Court refused the grant of Anticipatory Bail even though the accused was being framed based on just disclosure by co-accused in the case. But since the court found bank transfers between the co-accused and the applicant as valid corroborative evidence, they denied Anticipatory Bail. Although in the same judgement it was reaffirmed by the Delhi High Court that Anticipatory Bail could be granted “when there is material on record to show that prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication.”[2]

In the case of  In The Matter of:- Sugata Mondal @ Sougata Mondal @ Jhatan Mondal Versus  2019 SCCOnline Cal 2198, Calcutta High Court granted Anticipatory Bail to the applicant as the case to be made was solely based on disclosure by a co-accused. A major point to note here was that the application was successful despite the close relationship between the applicant and the co-accused disclosing the name. As here the co-accused was applicant’s own father.

Conclusion

Although understanding the need for strict laws for narcotics control in India, the fundamental rights of the citizens should always prevail. Any measure or law which could facilitate the violation of any fundamental right of a citizen shall not sustain. The Law of Anticipatory Bail, which is an important tool for the protection of Right to Personal Liberty of an accused is mostly infructuous in cases dealt under NDPS Act,1985. This renders the Right to Personal Liberty of all those involved in any violation relating to the said act, more prone to being violated. It is better for the legal system if no one is deprived of their Fundamental Right unless by due process of law. An accused shall not be jailed until he is proven guilty through the successful completion of the trial. Thus, discussion upon the sustenance of the Bail restrictions under Section 37 of the NDPS Act would be a step forward.

[1] Saiyad Mohd. Saiyad Umar Saiyed & Ors. Vs. The State of Gujrat, 1995 SCC (3) 610

[2] Amit Ranjan vs Narcotic Control Bureau, AIROnline 2019 Del 1066

[The author is a student at Symbiosis Law School, Noida.]