While considering the application for bail made by an accused involved in an offence under the NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible.
Section 37 of the NDPS Act reads as follows:
“37. Offences to be cognizable and non-bailable. –
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), — (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under Section 19 or Section 24 or Section 27-A 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 oppose 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.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974)4, or any other law for the time being in force on granting of bail.]”
Satisfaction with the conditions laid down under Section 37 of the NDPS Act is mandatory while entertaining a prayer for bail involving commercial quantity of narcotic drugs.
It is not in dispute that if the case involves commercial quantity. In such a scenario, consideration and reference to the twin conditions enumerated under Section 37 of the NDPS Act is mandatory.
While the Court has recognized on several occasions that prolonged incarceration warrants the grant of bail in view of Article 21 of the Constitution. Moreover, there is no doubt that what constitutes “prolonged incarceration” for the purposes of bail, has not been expounded by the Court or the law of the land.
Section 37(1)(b) as also Section 37(1)(b)(ii) of the NDPS Act, with regard to the expression “reasonable grounds” used therein. This Court held that it means something more than the prima facie grounds and that it contemplates substantial and probable causes for believing that the accused is not guilty of the alleged offence. Furthermore, it was held that the reasonable belief contemplated in the provision would require existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.