Narcotic Drugs and Psychotropic Substances Act, 1985: The
NDPS Act of 1985 is the leading law in India when it comes to narcotic drugs
and other such substances. This law was brought into force with stringent
provisions to regulate and prohibit the operations concerning substances such
as coca leaf, cannabis (hemp), opium, poppy straw, and other manufactured drugs
mentioned in Section-2 of the Act.[1] Before
the enactment of the NDPS Act 1985, statutory control over narcotic drugs was
exercised through Central and State legislations. Some of the prominent Central
Acts were namely – the Opium Act of 1857, the Opium Act 1878, and the Dangerous
Drugs Act, 1930, etc.
India is a signatory to the UN Single Convention on Narcotics
Drugs 1961[2],
the Convention on Psychotropic Substances, 1971[3]
and the Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988[4]
which prescribe various forms of control aimed to achieve the dual objective of
limiting the use of narcotic drugs and psychotropic substances for medical and
scientific purposes as well as preventing the abuse of the same. The
administrative and legislative setup in the field of Narcotics has been put in
place in the country in accordance with the spirit of the UN Conventions.
Salient Features of the Act: Sections 8 to 14 as enumerated in Chapter 3 of the Act
prohibit the usage, production, cultivation, possession, or trafficking of any
type of narcotic and psychotropic drugs. As mentioned in section 1, the Act
covers a wide area of operation and applies to every citizen, living in or
outside India, as well as people working on aircraft and ships who are
registered in India. A list of approximately 237 substances is included under
the Act.
Narcotic substances include - Plant-based products
like opium, heroin, and codeine and Synthetic narcotics like cannabis, cocaine,
and coca.
Psychotropic substances include any substance that affects
the brain which results in mood alterations or alteration in consciousness.
The NDPS Act consists of 5 chapters, with each chapter
dealing with a specific subject concerning the statute.
The fourth chapter deals with the offenses and lays
down the penalties. It describes the various possible crimes and describes the
punishment durations associated with it, for example, punishment for possession
of such substances, cultivation or preparation, smuggling of these substances
and the fifth chapter talks about the procedure of dealing with the cases and
sets the guidelines for the officers.
Bail Provisions under the Act: The issue of Bail under the NDPS Act is an
argumentative one. Section 37 of the Act[5]
states that every offense under the NDPS Act is cognizable and in cases where
it falls under section 19 (embezzlement of opium by cultivator)[6] or
section 24 (external dealings in narcotic drugs and psychotropic substances in
contravention of section 12)[7] or
section 27 (financing illicit traffic and harboring offenders)[8] or
that of involving commercial quantities – in such cases the accused shall not
be released on bail or on his own bond unless certain conditions are met with.
The conditions to be met with before granting bail under NDPS Act are that the
Public Prosecutor should be allowed to oppose the release of the accused and
where the Public Prosecutor opposes the release, to grant bail, the court must
be satisfied that there are reasonable grounds for believing that the accused
is not guilty of such offense and that he is not likely to commit any offense
while on bail.
Judicial Precedents in this regard: It was observed by the Supreme Court in State of
Kerala v. Rajesh[9]
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 Criminal Procedure Code, but is also subject to the limitation placed
by Section 37 which commences with a 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 the twin conditions are satisfied.”
The Gauhati High Court in the case of Md. Mafidul
Haque vs The State Of Assam, 2021[10]
had held that the three conditions stipulated in section-37 of the Act for
grant of bail to an accused are conjunctive and if any of the conditions is not
met then the bail can be rightly denied by the court irrespective of the length
of detention of the accused as that would be immaterial in such cases.
The most recent Judgment in this regard has been that of the Bombay High Court in the case of Rhea Chakraborty v. Union of India and others, 2020[11] wherein the court pronounced that all the offenses under the NDPS ACT are non-bailable leaving no scope of interpretation that offenses involving small quantities should be bailable. While reaching this conclusion, the court disagreed with the judgments in Stefan Mueller Vs. State of Maharashtra, 2010 [12] and Minnie Khadim Ali Kuhn Vs. State NCT of Delhi, 2012[13] which had held that offenses involving small quantities were bailable. The Bombay High Court placed reliance on the Constitution bench judgment of the Hon. Supreme Court in the State Of Punjab vs Baldev Singh, 1999[14] case which observed all the offenses under the NDPS Act to be non-bailable. “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 observed.
Court’s power under Section-439: Sub-section (3) of Section 36-A of the Act[15]
does not affect the special powers of the High Court regarding Bail under Section
439 of the Code of Criminal Procedure.[16]
For the offenses punishable under Section 37 of the Act, discretionary power
that is given to the court to order the release of a person is more rigorous
and is to be used very cautiously, unlike an order to release a person on bail
by exercising the power under Sec. 439 of the Code of Criminal Procedure.
Reasonable Grounds: Before granting bail, the court is called upon to
satisfy itself that there are reasonable grounds for believing that the accused
is innocent of the offense and that he is not likely to commit any offense
while on bail, the allegations of the fact, the police report have to be
closely examined before recording a finding as to whether the conditions given
under the said section, are fulfilled or not. Powers of the High Court under
Section 439 of Criminal Procedure Code are not curtailed in any way except that
they are to be exercised with embargo and conditions as laid down under Section
37 of the Act.
Recent Case in this regard: In the recent and much controversial case of Aryan
Shah Rukh Khan v. Union of India, 2021[17] the
rigors of the NDPS Act have again been brought to light especially with regards
to the granting of bail under the NDPS Act. The arguments put forth by the learned
Advocate Mukul Rohtagi (former Attorney General of India) representing Aryan
Khan before the Bombay High Court in the present case raised some crucial and pertinent
issues in cases like these such as that of violation of the provisions of
Article 22 of the Indian Constitution, and that of section 50 of the Criminal
Procedure Code. Questions were also raised on the admissibility of whats app
chats as electronic evidence and that of voluntary confessional statements made
to the NCB officials under section 67 of the NDPS Act.
Another important aspect that is worth mentioning here
and as was rightly pointed out by Advocate Satish Maneshinde, Aryan Khan’s
lawyer in the Drugs Case is the unimaginable plight of the undertrials
languishing in jails under the NDPS Act who cannot afford to pay the bail
amount or lack legal knowledge/ representation. This along with a few others
are some of the shortcomings of the NDPS Act.[18]
Major Shortcomings of the Act: The Act faces some serious drawbacks in the form of –
1.
Delay
in the Trials
2.
Bail
laws that prove to be more favorable to the rich and privileged than the poor
and underprivileged.
3.
Failure
of the investigating agencies in presenting prosecution cases according to the
set procedures.
The Act presupposes the guilt of the accused,
reversing the onus of proving the innocence. Section 35 presumes that the
accused had the intent, motive, and knowledge of his actions.[18]
Section 54 of the Act goes a further step and states that if the contrary is
not proved, it shall be presumed that the accused was in possession of the
illicit drugs that were seized from him.[19] The
restrictions imposed on the grant of bail under the Act amount to denial and
ensure years of imprisonment. Section 37(1) of the Act states that an accused
is not to be released on bail unless the court has a reasonable ground to
believe that the said accused is not guilty. Moreover, Section 31A of the Act
prescribed a mandatory death sentence for the offender upon conviction.
However, the Supreme Court of India in 1983, declared mandatory capital
punishment as unconstitutional.
Conclusion: Thus, the granting of bail for an offense under the
NDPS Act, 1985 has always been and continues to be a contentious issue that
largely depends not only on the discretion of the court but also on the facts
and circumstances of each case. Section-37 of the Act and the latest judicial
precedents have a great role to play in the approval/cancellation of bail in
cases falling under the Act. However, more often than not various High Courts
differ in their opinions/ decisions when it comes to granting of bail under the
Act. It is high time that that the NDPS Act is amended to ensure a reformative
approach towards the accused who are not habitual offenders or drug peddlers.
Bail is normally the rule, detention is the exception.
However, the Parliament is making an effort to contain the new evolving form of
heinous crimes. Not only are punishments becoming severe, but the pre-trial
procedures are also becoming stringent, and securing bail is no exception. With
the broad change in the criminal justice system, from “presumption of
innocence” to “presumption of guilt”, the very concept of bail is based on the
presumption of innocence till guilt is proved. The stringent provisions when
not drafted with adequate care can become prone to misuse and arbitrary action.
About the Author :
Mansi Katiyar is a penultimate year student at the Law
Centre 2, Faculty of Law, DU with a proclivity for Criminal and Constitutional
Law. She has graduated in BA Prog (Hist and Pol Sci disciplines) from Gargi
College, DU. She has a flair for reading and writing on current legal issues.
[9] State of Kerala v. Rajesh, 2020
SCC OnLine SC 81.
[10] Md. Mafidul Haque v. State of
Assam, 2021.
[11] Rhea Chakraborty vs Union Of India And Anr, 2020.
[12] Stefan Mueller v. State of Maharashtra, 2010 SCC OnLine Bom 1974.
[13] Minnie Khadim Ali Kuhn v. State
(NCT of Delhi), 2012 SCC OnLine Del 2657.
[14] State of Punjab v. Baldev Singh,
(1999) 6 SCC 172.
[17] Aryan Shah Rukh Khan v. Union of
India & ANR, 2021
[19] Supra, footnote 15.
[19] Supra, footnote 15.
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