Mr. X was found in unlawful possession of 21 Kgs of Ganja and he was arrested and remanded. What are the considerations that are to be borne in mind by the jurisdictional court while considering the application for regular bail. Explain?
Nivea is a final year student of Government Law College, Trivandrum. Member of LJRF
The Narcotic Drugs and Psychotropic Substances Act, 1985 is a central legislation to regulate production, consumption and transportation of such harmful substances as specified under the Act. It was enacted with the view to direct the population away from the illicit substances that are capable of hampering the physical well-being of an individual.
It extends to the whole of India, along with areas outside India to all citizens beyond the territorial jurisdiction of the country or individuals on ships or aircrafts registered in India. The legislation has provided exhaustive definitions of all the important terms under the scope of the Act. It has laid emphasis on the Central Government’s authority over the provisions of the Act and how much powers they possess to enforce the legislation.
Chapter IV, Sections 15 to 40, provides for various offences and punishments under the Act. It has identified certain activities that are against the acceptable social norms which have been included in the category of offences in the Act. These activities are forbidden by law due to the effect it causes to the physical health of an individual. These substances have the potential to damage the mental abilities of an individual as well. Even if it relieves the person of any suffering for a short while, its side effects are on the display in the long run.
In this case Mr. X was arrested for the unlawful possession of 21kgs of Ganja. Section 2 (iii) (b) of the NDPS act defines Ganja. It is the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated.
Section 20 of the NDPS Act prescribes the punishment in contravention in relation to cannabis plant and cannabis. The section says that:
- Whoever, cultivates any cannabis plant shall be punishable rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees.
- Whoever produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable for rigorous imprisonment for a term which may extend one year, or with fine which may extend to ten thousand rupees, or with both if it involves small quantity of 100 grams.
- If it involves quantity lesser than commercial quantity but greater than small quantity, the punishment shall be rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees.
- If it involves commercial quantity of 20 kgs, then with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
- In this case, as Mr. X was in unlawful possession of 21 kgs of Ganja which is more than the commercial quantity. Therefore, there is bar on the NDPS act to grant him bail. However, the jurisdictional court can grant him bail after considering the conditions specified under section 37 of the NDPS Act.
- A perusal of Sec. 37 of NDPS Act shows that it starts with a non-obstante clause stating that, Notwithstanding, anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on Bail unless the conditions contained therein were satisfied. Both the grounds must be satisfied before granting Bail i.e.
- The Public Prosecutor must be given an opportunity to oppose the application for such release, and
- 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.
- Since the Act prescribes a separate provision for Bail, the general provisions of Bail under the CrPC will not be applicable. The Act has been enacted with a view to make stringent provisions for the control and regulation of the operations relating to NDPS.
- That being the underlying object of the Act, Sec. 37 of the Act, it limits the applicability of the provisions of the CrPC regarding bail.
Release under NDPS Act is based on conditions mentioned in Sec. 37 of the Act apart from other factors, including the paramount consideration like in case of release whether the accused will flee from justice or will he make an attempt to tamper with the prosecution evidence. The discretionary power conferred under Sec. 439 of CrPC is subject to the limitations imposed under Sec. 37 of the NDPS Act.
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 offence and that he is not likely to commit any offence while on bail. The allegations of the fact and 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.
Ordinarily, on a bare reading of these provisions, it would look as if the Court is to adopt a negative approach and to decline bail but when the legislature has required the court to record a finding of its satisfaction of certain facts, the duty cast on the court is in positive terms. Grant of Bail is a rule and its rejection is an exception.
What has been stated in Sec. 37 of the Act would be applicable, accordingly when the question of release on bail is considered. But once an accused has been released on Bail, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which Bail can be otherwise cancelled.
The important grounds for cancellation of Bail are:
- Where the accused misuses his liberty by indulging in similar criminal activity,
- Interferes with the course of investigation,
- Attempts to tamper with evidence or witnesses,
- Likelihood of fleeing, etc
In the case of Jaganath Mahji v State of Odisha, the petitioner was arrested for commission of offence under Section 20(b)(ii)(C) of the N.D.P.S. Act as he was in conscious possession of 21 Kgs of contraband ‘Ganja’. The quantity of Ganja was more than commercial quantity and there is a bar under the N.D.P.S. Act for granting bail. The petitioner is a labour who was working under his contractor and he was unaware about the presence of Ganja. The petitioner alleged of the offence also did not have any criminal antecedents. The court taking into account of detention of the petitioner in custody and absence of any criminal antecedents, directed that the petitioner be released on bail on such terms and conditions:
i) the petitioner shall appear before the trial court on each date of hearing of the case;
ii) he shall not involve himself in any criminal offence while on bail.
Therefore, if the conditions specified under section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are fulfilled, then Mr. X can be released on regular bail.
(Question from Munsiff Magistrate main Exam 2022)
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