Required satisfaction of court about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds‟ for such satisfaction.
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 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.
Sec 437. When bail may be taken in case of non-bailable offence
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i)such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii)such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years :
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct “that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the Court.
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the Court shall impose the conditions,–
(a)that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b)that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, anabout the dual conditions i.e., prima facie opinion of the
innocence of the accused and that the accused will not commit a similar
offence while on bail, but the court must have „reasonable grounds‟ for
such satisfaction. d
(c)that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
and may also impose, in the interests of justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
Supreme Court Remarks
The contours of Section 37 of the Act have been analysed by the Hon‟ble Supreme Court in the case of Union of India v. Ram Samujh (1999) 9 SCC 429. In this case, the Apex Court adjudged the validity of
the order on bail granted by the High Court in a case registered under the Act. The Hon‟ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 125 of 1988. It is relevant to extract those for the present analysis, which reads as:
“6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects
and Reasons for introducing Bill No. 125 of 1988 thus:
“Even though the major offences are nonbailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt.”(emphasis supplied)
7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24)
“24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.”
The Supreme Court in the case of Union of India v. Md. Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with respect to Section 37 of the Act. After analysing the previous decisions of the Hon‟ble Supreme Court, the court prescribed the following test for granting bail under Section 37 of the NDPS Act:
“20. Based on the above precedent, the test which the
High Court and this Court are required to apply while
granting bail is whether there are reasonable grounds
to believe that the accused has not committed an
offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb
the menace of drug-trafficking in the country,
stringent parameters for the grant of bail under the
NDPS Act have been prescribed.”
Examples of Bail Denial
Muhsin Ali vs Narcotic Control Bureau(Delhi HC 25/01/2022)
Confession-Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1,where it was held that a confessional statement made under Section 67 of the NDPS Act will not be admissible in evidence.
Detention– SLP-NDPS Act-Preventive detention-the appellant detenu had been released on bail by the Special Court, Tripura despite the rigours of Section 37 of the NDPS Act, 1985 [Sushanta Kumar Banik Vs. State of Tripura & Ors (30/09/2022)]
Presumption-A presumption under Section 54 of the NDPS Act would arise in respect of the possession of a narcotic drug which is found to be in the conscious possession of the accused.
Cancellation of bail-Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 Apex Court observed that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act. Further, in Union of India v. Prateek Shukla (2021) 5 SCC 430 that non-application of mind to the rival submissions and the seriousness of the allegations involving an offence under the NDPS Act by the High Court are grounds for cancellation of bail.
Possession-Madan Lal and Another v. State of Himachal Pradesh (2003) 7 SCC 465- Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
Information-The compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is
one of urgency and expediency.[Karnail Singh v. State of Haryana (2009) 8 SCC 539]
Small quantity-Offences of smaller quantity, to which the rigors of Section 37 did not apply
Reasonable grounds – In Shiv Shanker Kesari (2007) 7 SCC 798 , held that:
“7- The expression used in Section 37(1)(b)(ii) is “reasonable
grounds”. The expression means something more than
prima facie grounds. It connotes substantial probable
causes for believing that the accused is not guilty of the
offence charged and this reasonable belief contemplated in
turn points to existence of such facts and circumstances as
are sufficient in themselves to justify recording of
satisfaction that the accused is not guilty of the offence charged.
8- The word “reasonable” has in law the prima facie meaning of
reasonable in regard to those circumstances of which the actor,
called on to act reasonably, knows or ought to know. It is difficult
to give an exact definition of the word “reasonable”.
“7 … In Stroud’s Judicial Dictionary, 4th Edn., p. 2258 states
that it would be unreasonable to expect an exact definition of
the word ‘reasonable’. Reason varies in its conclusions
according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy.”
(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Madan Lal and Another v. State of Himachal Pradesh Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532]
10- The word “reasonable” signifies “in accordance with reason”.
In the ultimate analysis it is a question of fact, whether a
particular act is reasonable or not depends on the circumstances
in a given situation. (See Municipal Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]
11- The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.”