All NDPS Offences Are Non-Bailable, Regardless Of Contraband Quantity: Bombay HC [Read Order]

In the order granting bail to actor Rhea Chakraborty, the Bombay High Court held that all offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, are non-bailable.The Court made this pronouncement in the case Rhea Chakraborty v. Union of India and others, rejecting the argument made by lawyers of Rhea and other accused that offences involving small quantities of contraband are bailable under the NDPS Act.The Court observed that the heading of Section 37 of the NDPS Act clearly stated that the offences under the Act were non-bailable. The provision did not leave any scope for an interpretation that offences involving small quantities should be bailable."If the accused claims bail as of right in case of possession of small quantity then no investigation can be carried out to find the source and trade of the contraband. This defeats the object of the Act", the the judgment delivered by Justice Sarang V Kotwal observed.While reaching this conclusion, the Court disagreed with the judgments in Stefan Mueller Vs. State of Maharashtra(Bombay HC, 2010) and Minnie Khadim Ali Kuhn Vs. State NCT of Delhi(Delhi HC, 2012), which had held that offences involving small quantities were bailable and others.For that, Justice Kotwal referred to the judgment delivered by the Constitution Bench of the Supreme Court in State of Punjab vs Baldev Singh(1999) which had an observation that the NDPS offences were non-bailable."Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail", the SC observed in Baldev Singh, noted Justice Kotwal."The situation has not changed since 1999 when these observations were made by the Hon'ble Supreme Court. In fact, the situation has become worse. Therefore, these observations apply to today's scenario with more force", Justice Kotwal added.Delving deeper into the issue, Court traced the legislative history of the Act since it was brought into force in 1985 -"At that time, Section 37 of that Act read thus:37. Offences to be cognizable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be cognizable.Thus, there was no mention in the Act itself as to whether the offences would be bailable or non-bailable. Therefore, obviously to consider this aspect, recourse needed to be taken to the provisions of CrPC. i.e. Part II of its Schedule. It is important to note that the Act, as it stood then in 1985, Section 27 provided punishment for illegal possession in small quantities for personal consumption of a contraband and under that Section the maximum punishment was one year.Subsequently, the Legislature felt that though the major offences were non-bailable by virtue of level of punishment, on technical grounds the drug offenders were being released on bail. Therefore, it was felt necessary to make the offences cognizable and non-bailable. This is mentioned in the Statement of Objects and Reasons dated 29.11.1988 for amendments carried out in the Act.Accordingly, Section 37 was amended. The marginal note of the amendment reads "Offences to be cognizable and non-bailable"; and the Section 37 after 1988 amendment (w.e.f. 29.5.1989)Section 37 was further amended in the year 2001. At that time, sentencing structure was introduced depending on the quantity of drugs in respect of certain penal Sections of NDPS Act.Thus, it can be seen that in the year 1985, CrPC. governed the provisions of bail for NDPS offences. By the amendment carried in the year 1989 (w.e.f. 29.5.1989), for the first time, the provisions of CrPC were excluded by specifically introducing a non obstante clause excluding application of CrPC. for grant of bail. If there was inconsistency between the NDPS Act and CrPC,the provisions of NDPS Act were to prevail."Justice Kotwal also noted that the Act was further amended in 2001. However, significantly the structure of Section 37 did not change. The only major difference was that the provisions for grant of bail were made less severe for offences involving quantities less than the commercial quantity of a contraband. In addition, of course, the rigours did apply to Sections 19, 24 and 27A.Under the Act, except Sections 26, 27 and 32, all other offences were non-bailable as per the schedule of Cr.P.C. and yet necessity was felt to make offences non-bailable as mentioned in the Statement of Objects and Reasons. The concept of small quantity was already there in the then existing Section 27. Therefore, the amendment to Section 37 in the year 1989 and then in the year 2001 will not be affected by the concept of "small quantity" introduced in the sentencing structure of other penal sections, Court said.Finally, relying upon the judgment of constitution bench of the Supreme Court in State of Punjab Vs Baldev Singh, Court said-"In my opinion, the situation is completely clarified by a Constitution Bench of the Hon'ble...

All NDPS Offences Are Non-Bailable, Regardless Of Contraband Quantity: Bombay HC [Read Order]

Nitish Kashyap

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