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Section 37 of THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES, ACT, 1985 is as given below : .
(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 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.
Section 37 essentially aims to ensure that people accused of serious drug-related offences do not get easy access to bail.For bail to be granted, the court must be satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence and that they are not likely to commit a similar offence if granted bail. The court must also take into account the nature of the offence, the quantity of drugs involved, and other factors before granting bail.The twin conditions under Section 37 of the NDPS Act imposed upon the Courts to consider granting bail to the accused under section 439 Cr.P.C. are practically impossible to be complied with, apart from being violative of provisions of even Cr.P.C.
The first condition i.e. “the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence” is against the provisions of Cr.P.C.
As per this condition before considering a bail application under section
439 Cr.P.C. Court will have to give a finding that there are grounds for believing that he is not guilty.
(i) Accordingly when the trial is yet to start and a bail application is presented, the trial Court will have to give a finding that he is not guilty, which is not permissible under law, when the matter is still under investigation, challan is yet to be filed.
(ii) Secondly when the challan has been presented and trial has commenced and the Court has framed the charges in commercial quantity under NDPS Act and the bail application is filed by the accused, then the compliance of this first condition of giving a finding of satisfaction that the accused is not guilty is not legally possible by the Trial Court as this exercise will amount to review of the Trial Court vide which charges were ordered to be framed for commercial quantity under NDPS Act as it will amount to review of the order framing charge, which is not permissible under the law.
(iii) That Section 37 of NDPS Act mandates Court to give a finding of not guilty while entertaining a petition for regular bail of an accused and the same not only impossible for a Court to give such a finding. It is also contrary to Section 35 of NDPS Act. Section 35 of NDPS Act provides for a presumption clause operating against the accused and in favour of the prosecution. Section 35 of NDPS Act is being reproduced herein-below:-
“35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-In this section “culpable mental state” includes intention,motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.”
Therefore the compliance of first condition by the Court entertaining a bail application of an accused is not permissible under Cr.P.C. apart from being unconstitutional and violative of Article 14 and 21 of the Constitution of India.
The second condition i.e. “he is not likely to commit any offence while on bail” requires a Court to give a certificate of its satisfaction that the accused will never commit any offence while on bail ,is impossible to be complied with, more so (for any offence).
In the present social and legal setup, where even traffic violations have been put under penal offences, it is impossible for a person to give a statement or a certificate or an undertaking that in future he will not commit any offence and apprehension of being falsely dragged in criminal offences is always there especially in the cases of family disputes like 498A etc. and unintentional traffic violations etc.
It is impossible for a Court to give a certificate of satisfaction that the accused is not likely to commit any offence.
Furthermore,every judicial order is subject to appeal or revision and wherein the judicial order is tested on legal parameters. Under NDPS Act there are no legal parameters/ yardsticks or criteria prescribed, on the basis of which a Trial Court or Hon’ble High Court can give a finding of satisfaction that in future the accused will not commit any offence. Under these circumstances, even if the Court after crossing all legal hurdles decide to give any such finding, then there is nothing to guide the Court to make basis of its finding so that its order can sustain judicial scrutiny in is appeal or revision.In the same manner, even for the accused also, it is not clear as to what facts they should bring on record to convince a Court to give a certificate of satisfaction that the Court is convinced that the accused will not commit any offence in future.
By incorporating these two mandatory conditions of Section 37 of NDPS Act, which are impossible to be complied with by the Courts and accordingly the Courts have started holding that Courts are barred from granting bail under section 37(1)(b) of NDPS Act, 1985, through the accused may be deserving concession of bail if the evidence collected by the police during investigation is considered on the basis of their evidentiary value under Evidence Act and accordingly fundamental rights of accused under Article 21 of the Constitution of India have affected adversely.
Article 21 of the Constitution of India has conferred upon every person a right to life and liberty. This right to life and liberty has been prescribed to be inviolable; except in accordance with the procedure prescribed under law. This Article of the Constitution came for interpretation before the Hon’ble Supreme Court of India in Maneka Gandhi v. Union of India (1978) 1 SCC248 wherein the Hon’ble Supreme Court, in no uncertain terms, laid down that Article 21 confers protection not only against the executive action but also against a legislation, which deprives a person of his life and personal liberty, unless the law for deprivation is reasonable, just and fair. It was further held that it is not enough for the law to prescribe some semblance of the procedure. A procedure for depriving a person of his life and personal liberty must be eminently just, reasonable and fair. If the Court finds that it is not so, the Court will strike down the same. Therefore, the effect of the judgment of the Hon’ble Supreme Court in Maneka Gandhi is that the law required under Article 21 of the Constitution of India for regulating the life and liberty of a person has to be more than mere law of any kind. It has to be just and reasonable both procedurally and substantially. Still further Supreme Court in this case approvingly followed the large Bench (consisting 11 Judges) judgment of the Supreme Court rendered in R.C. Cooper Vs. Union of India, 1970 AIR (SC) 564 and held that it is not the ‘object’ of the state action or the ‘form’ thereof, which is material, it is the ‘direct effect’ upon the right of the individual which shall be the determining factor for judging the constitutional validity of the state action.
The relevant part of the judgment is as under:-
“19. However, it was only R. C. Cooper’s case that the doctrine that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this doctrine is in substance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislation where there is conflict of legislative powers conferred on Federal and State Legislatures with reference to legislative Lists. The question which is asked in such cases is : what is the pith and substance of the legislations; if it “is within the express powers, then it is not invalidated if incidentally it effects matters which are outside the authorised field”. Here also, on the application of this doctrine, the question that is required to be considered is : what is the pith and substance of the action of the State, or in other words, what is its true nature and character; if it is in respect of the subject covered by any particular fundamental right, its validity must be judged only by reference to that fundamental right and it is immaterial that it incidentally affects another fundamental right. Mathew, J., in his dissenting judgment in Bennett Coleman & Co v. Union of India (1973)2 SCR 757 recognised the likeness of this doctrine to the pith and substance test and pointed out that “the pith and substance test, although not strictly appropriate, might serve a useful purpose” in determining whether the State action infringes a particular fundamental right. But in R. C. Cooper’s case, which was a decision given by the Full Court consisting of eleven judges, this doctrine was thrown overboard and it was pointed out by Shah, J., speaking on behalf of the majority (at pp. 596 and 597 of AIR 1970 SC) :“—-it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual’s right.”
“We are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme…………. ”
“In our judgment, the assumption in A. K. Gopalan’s case that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual’s guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.”
The decision in R.C.Cooper’s case thus overturned the view taken-in A.K. Gopalan’s case and, as pointed out by Ray, J., speaking on behalf of the majority in Bennett Coleman’s case, it laid down two interrelated propositions, namely:
“First, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly,, it is the effect of the law and the action upon the right which attracts the jurisdiction of the Court to grant relief. The direct operation of the Act upon the rights forms the real test.”
In light of this discussion ,if we examine the twin conditions laid down under Section 37 of the NDPS Act, then direct effect of this law is that Courts have started interpreting the same as there is a bar under section 37 of the NDPS Act to grant bail to the accused involved with the commercial quantity under NDPS Act.The Hon’ble Supreme Court in number of judgments,as discussed above , has asserted that any law through which the life and liberty of an individual is sought to be curtailed has necessarily to satisfy the test if reasonableness, justness and fairness and also test of exclusion of arbitrariness and irrational. Accordingly such law has to be pass the test of both, Articles 14 and 21 of the Constitution of India. It is immaterial whether such law is made by legislature or made by executive in exercise of it subordinate legislation. If such provision suffers from manifest, arbitrariness, irrationality or its prescribing something to be done without adequate determining principles, then such law has to be struck down as unconstitutional, due to the same suffering from arbitrariness and discrimination and therefore denying equal protection of law as guaranteed under Article14 of the Constitution besides unduly encroaching upon the right guaranteed under Article 21 of the Constitution of India.This goes for Section 37 of NDPS Act as well.