The Supreme Court has observed that there cannot be liberal approach in the matter of bail in NDPS Cases.
The bench of Justice Indu Malhotra and Justice Ajay Rastogi observed that the Court has to record a finding mandated under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the same is a sine qua non for granting bail to the accused under the NDPS Act.
The Court was considering the appeal filed by the State of Kerala against a High court order granting post-arrest bail to the accused respondents without noticing the mandate of Section 37(1)(b)(ii) of the NDPS Act.
The court noted 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. It said:
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.
The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed.
The bench said that the expression "reasonable grounds" means something more than prima facie grounds. It said:
It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.
Case name: STATE OF KERALA VS. RAJESH
Case no.: CRIMINAL APPEAL NO(S). 154157 OF 2020
Coram: Justice Indu Malhotra and Justice Ajay Rastogi
Counsel for Appellant: Sr. Adv Ranjit Kumar
Counsel for Respondent: Sr. Adv R. Basant