NDPS Act | Rigours Of Section 37 Applies To Bail, Not On Securing Presence Of Accused After Summons: Madras High Court

The Madras High Court recently observed that the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act would not come into play with respect to the acceptance of bond for appearance. Justice L Victoria Gowri remarked that Section 37 comes into play only when the liberty of a person from custody is sought and not when the accused is merely securing appearance pursuant to the summons.For context Section 37 states that 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 Public Prosecutor is given an opportunity to oppose the bail plea. Where Public Prosecutor opposes bail, 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. “It is equally settled that issuance of summons and acceptance of bond for appearance cannot be equated with grant of bail. The embargo under Section 37 comes into play when liberty from custody is sought, not when the accused is merely securing appearance pursuant to summons,” the court noted. The court was hearing a plea filed by an accused under the NDPS Act seeking direction to the trial court to accept sureties. As per the prosecution case, the police party conducted a vehicle check near the Irungalur Kaikatti on the Chennai- Trichy National Highway when they intercepted a motorcycle and a trailer lorry and recovered 140 kilograms of Ganja from the vehicles. Four persons were arrested and remanded. A final report was filed and cognisance was taken. During the pendency of the trial, a supplementary chargesheet was filed arraying three more accused, including the petitioner, alleging conspiracy under Section 29 of the NDPS Act. Based on the supplementary chargesheet, summons was executed. One of the accused appeared before the court and was directed to execute a bond with sureties. The petitioner's case was that he did not receive a summons and since another similarly placed accused was permitted to execute a bond, he should be allowed the same. He argued that he was not seeking bail but only acceptance of sureties pursuant to summons. It was also argued that when similarly placed co-accused was extended the benefit, the denial of acceptance of sureties ithout adjudication was arbitrary discrimination. The Additional Public Prosecutor opposed the petition and argued that the petitioner was an absconding accused in a commercial quantity NDPS case involving 140 kg of Ganja. The prosecution also argued that even for exercising discretionary powers under Section 88 of CrPC, compliance with Section 37 of NDPS Act was mandatory. The court noted that Section 88 of the CrPC/Section 91 of BNSS, empowered the court to take a bond for appearance of any person. The court noted that this power was discretionary, intended to secure attendance, and does not confer an enforceable right to the accused. In the present case, the court noted that the accused was neither seeking bail nor to bypass the rigours of Section 37 and the prayer was limited to consider the acceptance of sureties. The court thus directed the trial court to consider the request in accordance with the law, uninfluenced by parity alone. Counsel for Petitioner: Mr. S. Kasirajan Counsel for Respondents: Mr. S. Ravi, Additional Public Prosecutor Case Title: Mukesh Sharma v. State of Tamil Nadu Citation: 2026 LiveLaw (Mad) 55 Case No: Crl. O. P.(MD).No.22794 of 2025Click Here To Read/Download The Judgment

NDPS Act | Rigours Of Section 37 Applies To Bail, Not On Securing Presence Of Accused After Summons: Madras High Court

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NDPS Act | Rigours Of Section 37 Applies To Bail, Not On Securing Presence Of Accused After Summons: Madras High Court

Upasana Sajeev

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