Questions and answers on law (Part 75)

 Q 1:-  Whether bail can be granted in case the accused found in possession of commercial quantity of drug?

Ans:- The "Twin Conditions" for Bail as per S 37 of NDPS Act : Bail can only be granted if the public prosecutor has had an opportunity to oppose the application, and the court is satisfied that there are reasonable grounds to believe that accused is not guilty and is not likely to commit any offense while on bail.

Q 2:- Whether there is any bar to grant bail under the NDPS Act?

Ans:- Yes, there is a significant, strict legal bar to granting bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, specifically governed by Section 37. 

While bail is not absolutely impossible, Section 37 imposes a stringent "twin-test" restriction, particularly for offenses involving commercial quantities of drugs or specific offenses like Section 27A (financing traffic). 

The Bar Under Section 37 (Twin Conditions)

When the Public Prosecutor opposes a bail application, the court cannot grant bail unless it is satisfied that there are reasonable grounds to believe: 

1. Not Guilty: The accused is not guilty of such an offense.
2. No Repeat Offense: The accused is not likely to commit any offense while on bail. 

Key Aspects of the Bail Bar

• Commercial Quantity Limitation: The bar on bail is most rigorous when the quantity of contraband seized is "commercial" (as defined in the Act), rather than small or intermediate.
• Reverse Burden of Proof: Unlike normal criminal cases where the prosecution must prove guilt, Section 37 places the burden on the accused to satisfy the court of their innocence at the bail stage.
• Anticipatory Bail: Anticipatory bail (Section 438 of the Code of Criminal Procedure) is generally not granted in serious NDPS cases involving commercial quantities.
• Not a Total Prohibition: Courts have clarified that Section 37 does not create an absolute bar. If the prosecution's case is fundamentally flawed, or if there is no material to link the accused to the recovery, bail can be granted. 

Exceptions Where Bail Can Be Granted

Despite the strictness of Section 37, courts have granted bail in certain scenarios: 

• Procedural Violations: Non-compliance with mandatory procedures such as Section 42 (recording/forwarding information) or Section 50 (search procedures) can be grounds for bail.
• Illegal Sampling/Seizure: Improper sampling (e.g., non-compliance with Section 52A regarding inventory/sampling in front of a Magistrate) can warrant bail.
• Prolonged Incarceration: Long detention without a trial, if not attributable to the accused, may be considered, although the Supreme Court has recently tightened this, stating that long custody alone cannot overcome the Section 37 bar in commercial quantity cases.
• Weak Evidence: If the evidence is solely based on a co-accused's confession, which is inadmissible under Section 67 (as held in Tofan Singh v. State of Tamil Nadu), or if the evidence is highly unbelievable. 

Summary Table: Quantity vs. Bail

Quantity	Bail Prospects
Small	Generally granted as a matter of right.
Intermediate	Discretionary, subject to court scrutiny.
Commercial	Highly restricted; requires "twin conditions" of Sec 37 to be met.

Q 3:- Whether bar created under section 37 of the NDPS Act is absolute?

Ans:- No, the bar created under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act is not an absolute prohibition on the grant of bail, but it is a highly stringent conditional restriction. 

While Section 37 is often perceived as an "ironclad barrier"—particularly in cases involving commercial quantities—courts have held that it is a "conditional threshold" rather than a complete, automatic ban. 

Here is a detailed breakdown of the interpretation of Section 37:

1. The "Twin Conditions" (Conditional Restriction)

Section 37 mandates that bail cannot be granted unless the court satisfies two cumulative conditions: 

• Public Prosecutor Opposes: The Public Prosecutor must be given an opportunity to oppose the bail application.
• Reasonable Belief of Innocence: The Court must have reasonable grounds to believe that the accused is not guilty of the alleged offence.
• No Likelihood of Re-offending: The Court must be satisfied that the accused is not likely to commit any offence while on bail. 

If these conditions are not met, the court must deny bail, making it "absolute" in practice if the conditions are absent. 

2. Exceptions to the Absolute Bar

Courts have clarified that the rigours of Section 37 do not apply or can be bypassed in certain scenarios: 

• Material Non-Compliance/Procedural Violations: If the prosecution disregards mandatory procedures (e.g., proper sampling, search, seizure, or recording of information), the bar does not apply, and bail may be granted.
• Weak Evidence: If the evidence against the accused is "unbelievable" or insufficient to establish a prima facie case, the stringent requirements of Section 37 do not create an impassable obstacle.
• Small or Intermediate Quantities: The bar under Section 37 applies strictly to "commercial quantities." If the quantity is not commercial, the normal rules of bail apply.
• Long Incarceration/Article 21: In cases of prolonged pre-trial incarceration, the constitutional right to a speedy trial (Article 21) can override the statutory restriction, although the Supreme Court has recently tightened this, stating that long custody alone cannot justify bail if the twin conditions are entirely unmet. 

3. Key Judicial Clarifications

• Not a Trial: The court is not required to perform a detailed analysis of the evidence at the bail stage; it only needs to check for "reasonable grounds".
• Strict Adherence: The Supreme Court in State of Kerala Vs. Rajesh (2020) and subsequent rulings emphasized that the twin conditions are mandatory and cannot be overlooked.
• Not Absolute: The Jammu & Kashmir and Ladakh High Court in Union of India v. Thamisharasi (1995), affirmed by various supreme court rulings, held that Section 37 does not prohibit bail entirely but sets strict conditions. 

Summary: While Section 37 makes bail an exception rather than the rule in commercial quantity NDPS cases, it is not an absolute, blanket prohibition. It is a strict, conditional threshold that can be crossed if the accused can establish prima facie innocence or show fatal flaws in the prosecution's case. 

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