Supreme Court Sets Aside Bail in NDPS Act Cases: State of Kerala vs. Rajesh (2020)

Introduction

Date of the Judgment: 24 January 2020
Citation: 2020 INSC 64
Judges: Indu Malhotra, J., Ajay Rastogi, J.
Can a High Court grant bail to individuals accused of drug offenses without strictly following the conditions laid down in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985? The Supreme Court of India recently addressed this critical question in the case of State of Kerala vs. Rajesh. This judgment clarifies the stringent requirements for granting bail in cases involving drug-related offenses, emphasizing the need to adhere to the specific conditions outlined in the NDPS Act. The bench was composed of Justices Indu Malhotra and Ajay Rastogi, with the judgment authored by Justice Ajay Rastogi.

Case Background

The case involves two separate incidents registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). In Crime No. 14/2018, registered on 25th May 2018, the accused (A-1 to A-3) were found in possession of 10.202 kgs of hashish oil and currency notes worth Rs. 13,50,000/- at Hotel Aquarock. The accused respondent (A-5), Shajimon, was implicated for allegedly entrusting the hashish oil to A-1 through A-2 for sale in the international market. A charge sheet was filed on 10th May 2019.

In Crime No. 19/2018, registered on 25th October 2018, Shajimon (A-1) and Rajesh (A-3) were found in possession of 1.800 kg of hashish oil at Aristo Junction, Thiruvananthapuram. They were arrested on the same day, and a charge sheet was filed on 17th April 2019.

The accused sought post-arrest bail, which was initially rejected by the Additional Sessions Judge, but later granted by the High Court of Kerala. The prosecution challenged these bail orders, leading to the present appeal before the Supreme Court.

Timeline:

Course of Proceedings

The Additional Sessions Judge initially rejected the post-arrest bail applications of the accused in both Crime No. 14/2018 and Crime No. 19/2018, citing the mandate of Section 37(1)(b)(i) and (ii) of the NDPS Act. However, the High Court of Kerala granted bail to the accused in both cases. In Crime No. 14/2018, the High Court granted bail to A-5 without even noticing Section 37 of the NDPS Act, noting that other accused persons (A-1 to A-4) had already been released on bail. In Crime No. 19/2018, the High Court granted bail to A-1 and A-3, observing that they had completed 195 days in judicial custody and further detention was unnecessary. The High Court, while referring to Section 37, did not apply it to the facts of the case.

The State of Kerala filed an application under Section 482 of the Code of Criminal Procedure (CrPC) to recall the bail orders, which was dismissed by the High Court, stating that the remedy lies in challenging the orders before a superior forum. This led to the State appealing to the Supreme Court.

Legal Framework

The primary legal framework in this case is the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), specifically Section 37. This section makes offenses under the Act cognizable and non-bailable. Section 37(1)(b) states that:

“no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

Section 37(2) further clarifies that the limitations on granting bail under sub-section (1)(b) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail.

The NDPS Act, through Section 37, imposes stringent conditions for granting bail, requiring the court to be satisfied that there are reasonable grounds to believe the accused is not guilty and is unlikely to commit any offense while on bail. This provision is designed to curb drug-related offenses effectively.

Arguments

Appellant’s Arguments:

• The High Court erred in granting bail without considering the mandate of Section 37(1)(b)(ii) of the NDPS Act.
• Bail under the NDPS Act is an exception, not the rule. The court must be satisfied that there are reasonable grounds to believe that the accused is not guilty and will not commit further offenses while on bail.
• The conditions for granting bail under Section 37(1)(b)(ii) are in addition to the limitations under the CrPC or any other law.
• A liberal approach in granting bail under the NDPS Act is not warranted. Reliance was placed on the judgment in Satpal Singh vs. State of Punjab [2018(13) SCC 813].

Respondents’ Arguments:

• In Crime No. 14/2018, other accused (A-1 to A-4) were granted bail, and the prosecution did not challenge those orders. Therefore, the bail granted to A-5 should not be interfered with.
• In Crime No. 19/2018, the respondents were falsely implicated due to prior animosity with excise officials.
• Charge sheets have been filed in both cases, and no further investigation is required. The High Court imposed stringent conditions while granting bail, which have not been violated.
• The High Court was aware of the prior conviction of an excise official based on a complaint by the respondent, suggesting a possibility of false implication.
• The respondents had no prior cases under the NDPS Act, and judicial discretion was properly exercised.

Issues Framed by the Supreme Court

The Supreme Court addressed the following issue:

1. Whether the High Court was justified in granting bail to the accused under the NDPS Act without adhering to the conditions stipulated in Section 37 of the Act.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• Union of India vs. Ram Samujh and Ors. [1999(9) SCC 429] – Supreme Court of India: This case was cited to emphasize the legislative mandate of Section 37 of the NDPS Act and the need to adhere to the stringent conditions for granting bail. The Court highlighted that those dealing in narcotic drugs cause a deadly impact on society and are a hazard, necessitating strict enforcement of the law.
• Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95] – Supreme Court of India: This case was referenced to highlight the adverse effects of drug trafficking on society and the need for effective control measures.
• Satpal Singh vs. State of Punjab [2018(13) SCC 813] – Supreme Court of India: This case was relied upon by the appellant to support the argument that negation of bail is the rule and its grant an exception under Section 37(1)(b)(ii) of the NDPS Act.

Legal Provisions:

• Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985: This section was the central point of discussion. It outlines the conditions under which bail can be granted for offenses under the NDPS Act, emphasizing that such offenses are cognizable and non-bailable. The section mandates that the court must be satisfied that there are reasonable grounds to believe that the accused is not guilty and will not commit further offenses while on bail.
• Section 2(viia) and (xxiiia) of the NDPS Act: These provisions were referenced to define hashish oil and its classification as a commercial quantity when above 1 kg.
• Section 439 of the Code of Criminal Procedure, 1973: This provision was mentioned in the context of the limitations on the power of the court to grant bail, which are further restricted by Section 37 of the NDPS Act.
• Section 482 of the Code of Criminal Procedure, 1973: This provision was mentioned in the context of the application filed by the appellant in the High Court for recalling the order of granting bail to the accused.

Judgment

How each authority was viewed by the Court?

• The Supreme Court followed Union of India vs. Ram Samujh and Ors. [1999(9) SCC 429]* to emphasize the legislative mandate of Section 37 of the NDPS Act and the need to adhere to the stringent conditions for granting bail.
• The Supreme Court referred to Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95]* to highlight the adverse effects of drug trafficking on society and the need for effective control measures.
• The Supreme Court agreed with the appellant’s reliance on Satpal Singh vs. State of Punjab [2018(13) SCC 813]* that negation of bail is the rule and its grant an exception under Section 37(1)(b)(ii) of the NDPS Act.
• The Supreme Court held that the High Court did not adhere to the stringent conditions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the mandatory nature of Section 37 of the NDPS Act. The Court emphasized that the High Court had overlooked the stringent conditions required for granting bail under the Act. The primary concern of the court was to ensure that the legislative intent behind the NDPS Act, which aims to curb drug-related offenses, is upheld. The court also noted that the High Court’s approach was too liberal, which is not warranted under the NDPS Act. The court was also not convinced by the arguments of false implication and that other accused were granted bail, stating that each case must be considered on its own merits. The court was also influenced by the fact that the High Court itself accepted that there was an error in granting bail to the accused.

Logical Reasoning:

Key Takeaways

• The Supreme Court has reiterated that Section 37 of the NDPS Act imposes stringent conditions for granting bail.
• Courts must be satisfied that there are reasonable grounds to believe that the accused is not guilty and will not commit further offenses while on bail.
• A liberal approach in granting bail under the NDPS Act is not permissible.
• The grant of bail to other accused persons does not absolve the accused from the rigour of Section 37 of the NDPS Act.
• Claims of false implication must be substantiated and are not sufficient grounds for granting bail.

Directions

The Supreme Court set aside the High Court’s bail orders, cancelled the bail bonds of the accused, and directed them to be taken into custody. The trial court was directed to expedite the trial.

Specific Amendments Analysis

Not Applicable in this judgment.

Development of Law

The ratio decidendi of this case is that the conditions for granting bail under Section 37 of the NDPS Act are mandatory and must be strictly adhered to. The judgment reinforces the principle that bail is an exception, not the rule, in cases involving offenses under the NDPS Act, especially those involving commercial quantities of narcotics. This judgment clarifies that the courts cannot adopt a liberal approach in granting bail and must record a finding that the accused is not guilty and will not commit any offence while on bail.

Conclusion

The Supreme Court’s judgment in State of Kerala vs. Rajesh emphasizes the strict interpretation of Section 37 of the NDPS Act. The Court set aside the High Court’s bail orders, reinforcing the need for strict adherence to the conditions for bail in cases involving drug-related offenses. This judgment serves as a reminder that courts must exercise caution and diligently apply the law when considering bail applications under the NDPS Act.