Supreme Court chooses progressive interpretation over a literal one for grant of bail under Section 37 of the NDPS Act

The court underlined that a plain and literal interpretation of the conditions under Section 37 would effectively exclude the grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well.

THE Supreme Court, in a significant ruling, has held that the grant of bail on the ground of undue delay in a trial cannot be fettered by the stringent conditions under Section 37 (offences to be cognisable and non-bailable) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

A division bench comprising Justices S. Ravindra Bhat and Dipankar Datta passed an order to this effect on March 28 while granting bail to the appellant Mohd. Muslim alias Hussain, accused of being involved in a drug peddling network, and facing incarceration for over seven years as an undertrial.

The bench noted that “laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable.

Section 37 of the NDPS Act puts rigorous conditions for the grant of bail. According to it, the court should be satisfied that the accused is not guilty and would not commit any offence while on bail.

The bench underlined that a plain and literal interpretation of the conditions under Section 37 would effectively exclude the grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. It, therefore, included an element of ‘prima facie‘ satisfaction in Section 37 for grant of bail.

The conditions which courts have to be cognisant of are that there are reasonable grounds for believing that the accused is ‘not guilty of such offence‘  and that he is not likely to commit any offence while on bail. What is meant by ‘not guilty‘ when all the evidence is not before the court? It can only be a prima facie determination,” the bench held, adding that Section 37 places the court’s discretion within a narrow margin.

The bench explained what standard is to be considered for prima facie determination. It said the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved.

“The satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik),” the bench held.

The bench thus opined that the only manner in which such special conditions, as enacted under Section 37, could be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie basis, after looking at the material on record, that the accused is not guilty.

In the present case, the prosecution alleged that on September 28, 2015, based on secret information received by the police, a raid was conducted, leading to arrest of four accused persons— Nitesh Ekka, Sanjay Chauhan, Sharif Khan, and Virender Shakiyar/Sakyabar alias Deepak— who were alleged to be in possession of 180 kilograms of ganja. During investigation, Ekka was taken to Chhattisgarh for identification of co-accused persons. At his instance, Hussain (the appellant before the Supreme Court) was arrested on the intervening night of October 3/4, 2015. Pursuant to further investigation, three other co-accused (Virender Singh alias Beerey, Shantilal Tigga alias Guddu and Nepal Yadav alias Tony Pahalwan) were also arrested.

The prosecution’s case was that Beerey would purchase ganja and make transfers to the bank accounts belonging to Hussain, Guddu and Ekka, and supply the ganja to Pahalwan. On February 29, 2016, a chargesheet was filed under Sections 20 (punishment for contravention in relation to cannabis plant and cannabis)/25 (punishment for allowing premises, etc., to be used for commission of an offence)/29 (punishment for abetment and criminal conspiracy) of the NDPS Act and Section 120B (punishment of criminal conspiracy) of the Indian Penal Code, and on July 5, 2016 charges were framed against Hussain and the other co-accused. Two supplemental chargesheets were also filed on August 8, 2016 and November 8, 2017.

Returning the findings on the merits of the allegations, the bench noted that the prosecution had relied on that statement, as well as the confessional statement of Hussain; in addition, it relied on the bank statements of Beerey, who allegedly disclosed that money used to be transferred to Hussain. The bench observed that as against this, the prosecution had not recovered anything else from Hussain. It added that the allegations that Hussain was a mastermind was not backed by any evidence of extensive dealing with narcotics, which would reasonably have surfaced.

The prosecution has not shown involvement of the appellant, in any other case. Furthermore, he was apparently 23 years of age, at the time of his arrest. It is an undisputed fact that two co-accused persons (who also, were not present at the time of raid and from whom no contraband was recovered) – the accused (Virender Singh @ Beerey) who allegedly transferred money to the appellant’s account as payment for the ganja, and the accused (Nepal Yadav @ Tony Pahalwan) from whom the original insurance papers and registration certificate of the car from which contraband was seized, was recovered – have both been enlarged on bail. The appellant has been in custody for over 7 years and 4 months. The progress of the trial has been at a snail’s pace: 30 witnesses have been examined, whereas 34 more have to be examined,” the bench underscored.

While disposing of the petition in favour of Hussain, the bench also drew attention to the overcrowding in jails.

Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union home ministry’s response to the Parliament, the National Crime Records Bureau had recorded that as on December 31, 2021, over 5,54,034 prisoners were lodged in jails against a total capacity of 4,25,069 lakh in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials,” the bench recorded in the order.

On the effects of incarceration, the bench observed that it has deleterious effects, especially when the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society.

The courts, therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials— especially in cases where special laws enact stringent provisions, are taken up and concluded speedily, the bench advised.

Click here to view the Supreme Court’s full judgment.