The Narcotic Drugs and Psychotropic Substances Act, 1985, commonly referred to as the NDPS Act, is an Act of the Parliament of India that prohibits a person to produce/manufacture/cultivate, possess, sell, purchase, transport, store, and/or consume any narcotic drug or psychotropic substance. The Narcotic Drugs and Psychotropic Substances Bill, 1985 was introduced in the Lok Sabha on 23 August 1985. It was passed by both the Houses of Parliament, received assent from then-President Mr. Giani Zail Singh on 16 September 1985, and came into force on 14 November 1985. The NDPS Act has since been amended thrice – in 1988, 2001 and 2014.
This act was formulated to prohibit the use of the substances which would lead to affecting its citizen. This act punished the individual with the involvement of prohibitory substances. The question that came before the Hon’ble SC was that, “When an individual is charged under this act, is it correct to grant bail knowing his involvement with prohibited substances?”
In the case of the State of Kerala vs Rajesh, the SC held that whether the liberal approach can be chosen by the authority while granting the bail to accused under the NDPS Act? This was the case that has questioned section 37 of the Act. During the hearing of the case, the learned senior counsel submitted that negation of bail is the rule, and its grant is an exception under Section 37(1)(b)(ii) of the NDPS Act. For granting bail, the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offenses with which he has been charged, and further he is not likely to commit any offense while on bail. Learned Senior Counsel further submitted that the conditions for granting bail, specified in Section 37(1)(b)(ii) are in addition to the limitations provided under the CrPC, or any other law for the time being in force regulating the grant of bail. The liberal approach in the matter of bail under the NDPS Act is uncalled for.
In support of his submission, learned senior counsel has placed reliance on the judgment of the three¬Judge Bench of this Court reported in Satpal Singh Vs. State of Punjab 2018(13) SCC 813. 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 offense under the Act unless two 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 offense. If either of these two conditions is not satisfied, the ban for granting bail operates.
This act was made basically to prohibit the production of various herbs which proved to be a drug in the past. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offense. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offense.
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