By Adv. R. S. Agrawal :
Only in some of the offences where lesser punishment is provided, the rigours of bail provisions under Section 37 will not apply, but, that does not make those offences bailable. The concept of application of rigours and the concept as to whether a particular offence is bailable or non-bailable are two different issues.
JUSTICE Sarang V. Kotwal, at the Bombay High Court, while granting bail to the actress Rhea Chakroborty, has dealt with in detail, the aspect of the case, as to whether all the offences under the NDPS Act are non-bailable. The High Court has referred to the observations by the Supreme Court that despite the stringent provisions of the Narcotic Drugs and Psychotropic Substances Act 1985, as amended in 1988, the drug business was booming, addicts were rapidly rising, crime with its role in narcotics was galloping and drug trafficking network was ever-growing . While interpreting various provisions of the statute, the object of the legislature is required to be kept in view, but at the same time the interpretation has to be reasonable and fair. The situation has not changed since 1999 when these observations made by the Supreme Court. In fact, the situation has become worse.
Therefore, these observations apply to today’s scenario with more force. It was argued on behalf of the applicants that the judgement in the case- State of Punjab v. Baldev Singh –(1999) 6 SCC 172 was delivered 21 years ago in the year 1999 and thereafter there was further amendment to Section 37 in the year 2001. Therefore, it was sought to be contended that these observations are not applicable to the amended Section 37 after 2001. This contention has no force. The section itself has not undergone any change in its structure. Only in some of the offences where lesser punishment is provided, the rigours of bail provisions under Section 37 will not apply, but, that does not make those offences bailable. The concept of application of rigours and the concept as to whether a particular offence is bailable or non-bailable are two different issues.
The non obstante clause in section 37 plays a very important part in construction of that section. Originally, in the year 1985, this non obstante clause operated to exclude the provisions of Cr.P.C. only to make all offences cognisable. At that point of time, Section 37 declared that all the offences were cognisable notwithstanding anything contained in the Cr.P.C. In the year 1985, the applicability of the Schedule to Cr.P.C. was not excluded. For the first time in the year 1989 when the amended provision of Section 37 was brought into force, the bail provisions of Cr.P.C. were brought under the non obstante clause of Section 37. The HC addressed to the following questions while deciding this application for bail: (i) Whether the offences alleged against the applicant are bailable.
This question needed to be decided because the applicant was claiming to be released on bail as a matter of right. (ii) If the offences are non-bailable, then, as to whether rigours mentioned in section 37(1)(b) of NDPS Act are applicable. (iii) If such rigours are not applicable and if the offences are non-bailable then whether the Court should exercise its discretion to grant or refuse bail. In the opinion of the HC, the situation is completely clarified by the Supreme Court through its decision in the case – State of Punjab v. Baldev Singh – (1999) 6 SCC 172, while deciding the ambit and scope of Section 50 of the NDPS Act. While deciding this issue the SC considered as to why this Act was brought in force and also considered other provisions and as to how these provisions were interpreted.
The entire scheme of the Act was considered in detail. In the said decision, the SC has stated: “3. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, but in case of drug trafficking, that besides eating into the vitals of the society, but also, illicit money generated by it, is often used for illicit activities including encouraging terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. “Anti-drug justice is a criminal dimension of social justice. The United Nations Convention against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances, which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations.
The Government of India has ratified this Convention.” Prior to the passing of the NDPS Act, 1985 control over narcotic drugs was being generally exercised through certain Central enactments though some of the States had also enacted certain statutes with a view to deal with illicit traffic in drugs. As can be seen the SC has considered the amendment Act of 1988 in detail and clear terms and mentioned with no uncertainty that “Section 37 makes all the offences under the (NDPS) Act to be cognisable and non-bailable and also lays down stringent conditions for grant of bail.” This categorical statement shows that Section 37, firstly, makes all offences non-bailable and also lays down stringent conditions for grant of bail. Clarifying the confusion about quantity being large or small the HC has stated that the scheme of the NDPS Act, after the amendment in the year 2001 shows that the concept of small, intermediate and commercial quantity was introduced in some penal sections.
The sentencing structure was changed. For smaller quantity, the sentence is much lesser. For intermediate quantity, minimum sentence was not provided. But for the offences involving commercial quantity, the minimum sentence provided is ten years. Another issue raised before the High Court was that section 37 indicates that rigours in granting bail are applicable for the offences involving commercial quantity and this concept will apply even to sections 19, 24, and 27A of the NDPS Act, if only the offences involve commercial quantity. The reasoning has been that sections 19, 24 and 27A are separated by word “Or”.