Delhi High Court Clarifies Controlled Substances Are Not Affected By The Bar To Bail Under Section 37 Of The NDPS Act

In a case involving a foreign national arrested under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Delhi High Court clarified the liability of persons accused of offenses involving controlled substances and the foreigner's right to bail. Section 37(1) of the Act states that: "37. Offenses to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) every offense punishable under this Act shall be cognizable; (b) no person accused of an offense punishable for 3 [offenses under section 19 or section 24 or section 27A and also for offenses involving commercial quantity] shall be released on bail or on his own bond unless—" In this case, the Petitioner was the source person for Pseudoephedrine drug for a business chain operating in Punjab, Haryana, and Delhi. Holding the drug to be a "controlled substance", Justice Bhatnagar held that the bar of Section 37 is not applicable in this case. Liability for Pseudoendephrine-related Offense Citing the Ministry of Finance Department of Revenue Notification dated 28.12.1999, the Court observed that Pseudoephedrine is a "controlled substance." Section 2(viid) of the NDPS defines the same as "any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance." As per Section 9A of the Act, the Central Government may regulate or prohibit the "production, manufacture, supply and distribution thereof and trade and commerce" of controlled substances. Read with Section 25A, the maximum punishment for offenses involving controlled substances is 10 years and a fine of Rs. 1 lakh. Section 37 of the Act bars persons accused of offenses in the category of offenses under Sections 19, 24 and 27. In other words, the bar is only applicable to offenses involving narcotic drugs or psychotropic substances. Further, in this case, the offense was not such as to warrant death/life imprisonment. Thus, the Court excluded the operation of the bar to offenses involving Pseudoendephrine. Justice Rajnish Bhatnagar held: "The substance alleged to have been recovered from the petitioner/accused is 3.5 Kg. of Pseudoephedrine which is a controlled substance. It has been rightly submitted by the Ld. counsel for the petitioner/accused that it is neither a narcotic drug nor a psychotropic substance under the NDPS Act. The alleged offences are not punishable with death or imprisonment for life. The offence falling U/s 9A r/w section 25A of the NDPS Act is punishable with imprisonment which may extend to 10 years and also fine which may also extend to Rs. 1 Lakh and the bar of Section 37 is not attracted in the present case as the substance recovered is a controlled substance within the meaning of Section 2 (viid) of the Act." Right to Bail to a Foreign National The Petitioner (the foreigner in Judicial Custody) cited Supreme Court's decisions in Gudikanti Narasimhulu and Others v. Public Prosecutor (1978) and Sartori Livio v. State (2005) to assert his Right to Life and Personal Liberty under Article 21 of the Constitution in the context of bail. It had been emphatically held in the decisions that even foreign nationals have the liberty to avail bail. In Sartori Livio, it was held that: "It would be a shame if courts are going to keep persons incarcerated merely because they are of foreign origin even though prima facie no case is made out against them. This would be a negation of the valued principles of rule of law and violative of the constitutional mandate and principles of human rights." Following the cited holdings, the Court examined the foreign national's bail case. Noting that the quantity of the drug found with the offender was only 3.5kg Pseudoendephrine along with 15gm Cocaine, the Court held that the same could not qualify "commercial quantity" within the meaning of Section 37 of the Act. The Court relied on the Delhi High Court precedents, which granted bail to persons with even 100 kg or more of controlled substances. These included "Niranjan Jayantilal Shah Vs. Directorate of Revenue Intelligence" decided on 19.11.2013 (Bail Application No. 1202/2013) and "Manoj Kumar Vs. Directorate of Revenue Intelligence" 2015 SCC On Line Delhi 7830". Holding The Court granted bail to the Petitioner directing him to furnish a personal bond of Rs. 1,00,000 and fulfil other conditions: "The Petitioner is in J.C. since 16.02.2018 and the final conclusion of the trial of this case is likely to take a long time. Therefore, the Petitioner is admitted to bail on his furnishing personal bond in the sum of Rs.1,00,000/- with two solvent sureties...

Delhi High Court Clarifies Controlled Substances Are Not Affected By The Bar To Bail Under Section 37 Of The NDPS Act

Prateek Chakraverty

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