NDPS Bail Conditions Discriminatory, Irrational And Defy Human Logic, Says Punjab & Haryana HC [Read Order]

“On mere opposition by the Public Prosecutor, to the grant of bail to the accused, this Section castes a duty upon the Court to satisfy itself that there are reasonable grounds for believing: (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail. The entire controversy, in this case, is regarding the above-said two conditions.”While deciding a bail application in a drug trafficking case, Justice Rajbir Sehrawat of Punjab and Haryana High court ventured an in-depth analysis of constitutionality of the provisions of NDPS Act, which puts conditions on grant of bail.Though the Judge did not hold that the provision is unconstitutional, as he was only considering a bail application, he made several observations in the judgment to the effect that it is discriminatory, irrational and defy human logic.Bail under NDPSThe bail provision under NDPS Act (Section 37) reads: “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.”In his judgment, Justice Sehrawat has focused on the provision castes a duty upon the Court (when prosecutor opposes bail) to satisfy itself that there are reasonable grounds for believing: (A) that he is not guilty of such offence; (B) that he is not likely to commit any offence while on bail.The ContentionsWhile arguing the bail applications, the counsel for the accused, made a submission before the bench that like any other citizen, the accused is also entitled to be considered for grant of bail under more liberal provisions of Section 439 of Cr.P.C. It was further contended that applying strict provisions of Section 37 of NDPS Act is a discrimination with him. Relying on recent judgment of the Supreme Court in Nikesh Tarachand Shah Vs. Union of India and another, it was contended that a similar provision as contained in Section 45 of the Prevention of Money Laundering Act, 2002 has been held to be unconstitutional by holding that the importance of the `object' of the Act cannot be made a ground to trample the right of life and liberty guaranteed to the petitioner under Article 21 of the Constitution of India.Discriminatory In View of Nikesh Tarachand Shah RatioOn the contention based on SC judgment in Nikesh Tarachand Shah, the Court observed that in the said case, one of the grounds for holding the provision of Section 45 of Money Laundering Act, 2002 as unconstitutional was that there was no prohibition in the Money Laundering Act for grant of anticipatory bail. It was observed in the said case that, a person could be granted anticipatory bail under Section 438 Cr.P.C without adverting to the conditions prescribed under Section 45 of Money Laundering Act and he can continue on bail without the Court recording its satisfaction qua the conditions prescribed under Section 45 of the Money Laundering Act.The court said: “However, if a person is somehow arrested then he cannot be released on bail except after recording of the satisfaction by the Court as to the conditions specified in Section 45 of the Money Laundering Act. Therefore, the conditions prescribed under Section 45 of the Money Laundering Act were held to be discriminatory and arbitrary. In the present case also, there is no prohibition under NDPS Act for grant of anticipatory bail.”The court further said: “Therefore, a person can get the anticipatory bail irrespective of compliance or consideration of conditions prescribed under Section 37(i)(b) (ii), whereas, if a person is arrested, he cannot be granted bail unless the Court records its satisfaction as to the conditions prescribed under the above said clause of Section 37 of NDPS Act. This can also lead to a thoroughly absurd situation, taking for example, the case of a person who, at initial stage, is just named as an accomplice in a case under the NDPS Act, without there being anything else against him in the FIR; but his co-accused being arrested with commercial quantity. The Court can grant him an anticipatory bail in such a situation and most probably, he is likely to get the concession of anticipatory bail. No compliance of Section 37(1)(b)(ii) would be required. Whereas his co-accused arrested with commercial quantity will not be granted bail by the Court; except after recording its satisfaction as to the conditions specified in Section 37 of NDPS Act. Taking the example further, the former person who has been granted anticipatory bail, can be found to be the person from whom the later had received the seized consignment of commercial quantity and...

NDPS Bail Conditions Discriminatory, Irrational And Defy Human Logic, Says Punjab & Haryana HC [Read Order]

Ashok Kini

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