Bail provisions under NDPS Act

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The Narcotic Drugs and Psychotropic Substances Act, 1985 is one such legislation which regulates and prohibits the consumption, sale, use or any other related activity of drugs or pysctrophic substances. The offences are generally tried in special courts. The punishments for first conviction for having drugs of commercial quantity varies from 10-20 years and for second or subsequent conviction between 15- 30 years. Even if any person is found with the possession of small quantities of drugs as mentioned in the Act he/she is liable for rigorous imprisonment up to 6 months or fine upto 10,000 Rupees or both. Any person who aids or abets in the commission of such offences are also punishable with a similar punishment and for preparation the punishment is half of it.

These offences are cognizable whereby the police officers can arrest without warrant. Regarding bail, the provision is little confusing as the title of section 37 reads as non- bailable however the same is not reflected in the section. As per section 37 of the Act bail cannot be granted in certain cases such as embezzlement of opium by cultivators, trading in narcotic drugs outside India, illicit traffic or harboring of offenders unless certain conditions are met with1. Here opportunity of hearing must be given to the public prosecutor as to why the accused must not be released. And only when the court is satisfied that there are no reasonable grounds to reject his bail, the accused is released.

The Bombay High Court in the case of Rhea Chakraborty v. Union of India and others2 , held that all offences under NDPS Act is non- bailable whether found possessing small quantities of drugs or in commercial quantity. This judgment became controversial as many contended that there must be a difference between small quantities and commercial quantities. As we know that mostly the teens fall for such acts very easily and if stringently punished like those possessing commercial quantities it increases the chances of recidivism.

Under section 64A of the NDPS Act there are certain immunities available too. If the convicted accused willingly undertakes to volunteer for de- addiction will be immune from prosecution. However this applies only in case of possession of small quantities and the accused must undergo the complete treatment. Also immunity is available if one makes full disclosure of any contravention under the Act to obtain evidence.

Recently, the arrest of one of the famous actor’s son under the NDPS Act came to the limelight. Many might be wondering why Aryan Khan was not granted bail. Under the cruise ship case, Aryan Khan, Arbaaz Merchant and Munmun Dhamecha were booked under sections 8(c), 20(b), 27, 28, 29 and 35 of the NDPS Act. Section 8(c) of the Act prohibits any kind of sale, consumption, purchase of narcotic drugs. Whereas section 20(b) deals with cannabis, Depending on the quantity of cannabis recovered, the punishment can be rigorous imprisonment up to 1 year. Section 27 deals with the punishment for consumption of narcotic or Psychotropic drugs which varies from 6 months to 1 year with fine between 10,000 to 20,000 rupees. Section 28 deals with attempt to commit a crime and section 29 deals with conspiracy. Finally section 35 deals with the existence of culpable mental intent and the burden of accused to prove it otherwise.

While granting bail, paramount importance is given to whether the accused will flee from the country if bail is granted and this section i.e., 439 of Crpc which deals with discretionary powers of court in case of bail is subject to section 37 of the NDPS Act. Further non- compliance with section 42 and section 50 also might lead to rejecting of bail.

Thus, generally to get bail under NDPS Act is not an easy task. The Act is stringent and punishes any person found illegally dealing with narcotic drugs and Psychotropic Substances. However it is met with certain criticisms for punishing persons found in possession of small quantities of drugs and lack of rehabilitative measures.

[1] Shalya Chalasani, , Indian Law regarding Narcotic drugs: an explainer, LIVE LAW, (Oct 26, 2021 6: 29 pm), https://www.livelaw.in/know-the-law/narcotics-drugs-and-psychotropic-substances-act-offences-punishment-bail-immunity-183550.

[2]Crl Bail Appln. /2386/2020.