Section 37 NDPS Act : Principles For Grant Of Bail For Offences Involving Commercial Quantities

It is a settled position of law that liberal approach in the matter related to the Narcotic Drugs and Psychotropic Substances is uncalled for (State of Kerala vs Rajesh, SC decision on 24.01.2020) and the Supreme Court in many Judgments had laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under Narcotic Drugs and Psychotropic Substances Act , 1985 ( NDPS Act.) "….It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death−blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. (Union of India v. Ram Samujh and Ors 1999(9) SCC 429) SECTION 37 OF THE NDPS ACT The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is a firm legislation designed to amend the laws relating to narcotic drugs. It devises strict provisions for the control and regulation of operations relating to narcotic drugs and Psychotropic Substances. Section 37, that comes under Chapter IV of the NDPS Act, discusses the aspect of offences to be cognizable and non-bailable. Section 37 of the NDPS Act is a tool devised by the parliament to have a check on the menace of dangerous drugs flooding in the market and a sine qua non for granting bail to the accused under the NDPS Act The detailed breakdown of Section 37 is as follows: The section states every offence punishable under the Act shall be cognizable. No person accused of an offence punishable for [offences under section 19 or section 24 or section 27-A and also offences involving commercial quantity ] shall be released on bail or on his own bond, unless the following conditions are met.For granting bail, the following conditions are to be met, (i) there are are reasonable grounds for believing that the accused is not guilty of such offence (ii) that he is not likely to commit any offence while on bail are satisfied It was observed by the Apex Court in State of Kerala v. Rajesh that , The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non−obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. WHAT IS COMMERCIAL QUANTITY ? As mentioned above, Section 37 of the NDPS Act considers every offences punishable under the Act as Cognizable. And it denies bail for the offences mentioned under Sections 19 or 24 or 27-A of the NDPS Act and equally any offences regarding commercial quantity. The commercial quantity is well defined under Section 2(vii-a) of the NDPS Act. Which means the quantity that is greater than the quantity specified in the schedule. Section 2(vii-a) defines : "Commercial quantity" , in relation to narcotic drugs and psychotropics substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Another explanation provided by the act which seems relevant is regarding the "Small quantity".Section 2 (XXIII-a) expounds the aspect of "Small quantity" as the quantity which is subordinate than the quantity specified in the schedule of NDPS Act. Section 2(xxiii-a): "Small Quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the central government by notification in the official Gazette THE CONDITIONS STIPULATED UNDER SECTION 37 The first condition as mentioned under Section 37 is to provide an opportunity to the Public Prosecutor and clear her stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. If either of these two conditions is not met, the ban on granting bail operates. Therefore to summarise the law relating to the rigours of Section 37 of NDPS Act, it...

Section 37 NDPS Act : Principles For Grant Of Bail For Offences Involving Commercial Quantities

Viswajith Anand

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