NDPS Act | Case Involving Small Quantity Bailable Under BNSS, Accused Entitled To Bail Without Filing Plea: Punjab & Haryana High Court

In a significant development, the Punjab & Haryana High Court has said that case involving small quantity under the NDPS Act is "Bailable" by operation of BNSS and accused will be entitled for bail without filing bail application.The case pertains to the alleged recovery of 1 gram of heroin. The petitioner was arrayed as an accused based on a disclosure statement. Following a chance recovery, the police seized 1 gram of heroin from the possession of the co-accused. He confessed before the Police officer that he used to purchase drugs from the petitioner Kuldeep, and even the heroin recovered was purchased from him.While setting aside the order rejecting pre-arrest bail the Court said, "when the contravention under the NDPS Act involves 'Small Quantity', the offences are 'Bailable'. When the drug quantity falls in small category, the offence is bailable by operation of BNSS, 2023. Thus, any person accused of such an offence is entitled to bail without filing any bail application, subject to furnishing the requisite bail bonds."Law Silent On Bailability In Offences Involving Small QuantityThe Court referred to Section 21 of the Act and said "NDPS makes it unequivocally clear that stated offenses involving small quantitiesof manufactured drugs and preparations are punishable by a maximum term of one year. Under the NDPS Act, various offences that involve violations pertaining to small quantities have been similarly penalized, reflecting a uniform legislative approach to minor fractions. However, the statute remains silent on the question of bailability for such offences."Perusing Section 37 of the NDPS Act, the Court said, "The title of § 37 of the NDPS Act explicitly designates offenses under the Act as cognizable and non-bailable, its provisions taking precedence over those of the CrPC, 1973, and the BNSS, 2023, whenever a distinct procedural framework is prescribed. However, within the substantive text of § 37, the legislature introduced sub-section (1), which expressly states that all offenses under the NDPS Act are cognizable."The Court further explained that, the heading of Section 37 of the NDPS Act designates offences under the Act as cognizable and non-bailable. However, a careful textual examination reveals that if the legislature had intended to classify all offences as non-bailable, it could have explicitly done so by employing a simple 'all' -encompassing prefix. The section aims to make all offences cognizable but only certain offences non-bailable."§ 37(1)(b) imposes specific restrictions on bail, but only in relation to offences involving commercial quantities or those punishable under §§ 19, 24, and 27A of the Act. It categorically mandates that individuals accused of such offences shall not be released on bail or their own bond unless the Public Prosecutor has been afforded an opportunity to oppose the bail application. Further reinforcing these stringent conditions, § 37(2) adds multiple layers of restrictions by stipulating that the limitations prescribed under § 37(1)(b) shall operate in addition to the general restrictions on bail imposed by the CrPC or BNSS, or any other applicable law in force," opined the Court.It further said, If one were to argue that the omission of the term "all" does not conclusively indicate a deliberate legislative intent, the absence of any explicit provision within the substantive body of Section 37 categorically declaring all offenses as non-bailable remains a critical omission that cannot be disregarded. "By contrast, the legislative certainty regarding the cognizable nature of offences under the NDPS Act isunequivocally established in Section 37(1)(a), which expressly stipulates that every offence under the Act shall be cognizable. However, when it comes to the question of bailability, the statute does not adopt an equally sweeping approach," the bench observed.The Court highlighted that, since the NDPS Act does not explicitly classify offences involving small quantities as non-bailable, recourse is taken to § 5 of BNSS, 2023 which mandates that in the absence of a specific provision in a special enactment, the general principles of classification under BNSS shall apply. In this context, Part II of the First Schedule of BNSS, 2023 (corresponding to Part II of the First Schedule of the CrPC, 1973) provides the framework for determining whether an offence is bailable or non- bailable based on the prescribed punishment.It pointed that "Since the maximum prescribed punishment for small quantity offences is limited to one year, they fall within the lowest tier of classification, thereby rendering them bailable by operation of law."NDPS Balances Between Shielding Society From Drug Abuse And Fostering Minor Offender Through Rehabilitative Jurisprudence The Court said that, "A nuanced examination of Section 39, read in conjunction with Sections 64A and 71, reveals a legislative paradigm that differentiates between hardened traffickers on one hand and the...

NDPS Act | Case Involving Small Quantity Bailable Under BNSS, Accused Entitled To Bail Without Filing Plea: Punjab & Haryana High Court

Aiman J. Chishti

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