When it comes to getting bail under Narcotics laws, the legal position is difficult for the accused NDPS laws is one of the most brutal statutes since its inception which aim at controlling drug related crimes in India. Because of its strict provisions, the Act imposes heavy punishment which is effective in preventing drug trade and addiction. One of the key features of NDPS Act is the requirement of bail for the accused during the trial process. This article discusses about the clinical approach towards bail in NDPS cases, bail conditions, and the significant cases that have shaped this law in India.

Understanding the concept of Bail under the NDPS Act:

Concept of Bail under the NDPS Act Section 37 of the NDPS Act distinguishes offences cognizable under the act which designates the arrest of the accused without a warrant. Bail in this context means the temporary release of a person under custody whilst awaiting for the trial to commence. Given the gravity of drug offences, it is often difficult to be granted bail under the NDPS Act.

However, personal liberty is a right insured by the Constitution of India, in other words there are material reasons why one is business bail, and arbitrariness cannot be the reason to refuse it. Seeking the assistance of an experienced lawyer specializing in NDPS cases is crucial for filing a well-prepared bail application.

Related provisions of the NDPS Act

These offenses are classified as serious and of considerable magnitude, and below are some of the salient provisions of the Act:

• (Embezzlement of Opium by Cultivators) Section 19 (Substance Related Crimes) - Section 37 in particular deals with the persons who have been charged with the EMI crime.
• Section 24 (External Dealings of Narcotics Drugs and Psychotropic Substances)
• Offenses that contain commercial amounts shall be bailable, along with offenses under Section 27A (Financing of Illicit Drug Trafficking and Harboring Offenders), as long as two conditions are fulfilled by the accused:
  • Where the public prosecutor had the chance to request rejection of the filing.
  • The court is satisfied that there are reasonable grounds to believe the accused.

Bail under the NDPS Act In Brief

The offenses under the NDPS Act are stated as cognizable in the sense that the arrested can be taken into custody without a warrant. In such situations, bail is understood as the practice in which an accused is let out of custody for the time being, pending the hearing of his case. Since drug-related crimes are considered to be among the most serious offenses, getting bail under the NDPS Act is a tough task. However, as the right to personal liberty is a basic right which is guaranteed by the Constitution of India, this may be problematic. So it is not possible to refuse bail in an arbitrary manner; it has to be granted or refused depending on the facts and merits of each case.

Criteria that are taken into account when determining whether to grant bail.

The courts consider a number of factors before reaching a decision on whether or not to grant bail in NDPS cases. The most important criteria include:

Factors Affecting Bail in Drug-Related Offenses

1. Nature and quantity of Drugs: Courts evaluate the seriousness of the offense and the quantity of drugs involved while deciding on bail. In cases involving small quantities of drugs meant for personal use, the chances of granting bail are higher.
    
2. Criminal Involvement: The judge considers the level of the accused's participation in the alleged crime. When evidence is not established or clear enough to tie the suspect to drug trafficking or production, it becomes easier for him/her to be released on bail.
    
3. Background and Crime History: The criminal record of the accused is also put into consideration. History of previous offenses in terms of drugs or even other crimes may deter the judge to grant the suspect a bail.
    
4. Obstacles to Investigation: The court will consider whether granting bail to the accused would interfere with the investigation or even allow evidence to be tampered with or witnesses intimidated.

Relationship between the National Drug Policy Act and Section 437 of the Code of Criminal Procedure

1. Narcotic Control Bureau v. Kishan Lal, AIR 558 of 1991 SCR (1): The court held that in case of inconsistency between Section 37 of the NDPS Act and Section 437 of the Code of Criminal Procedure, provisions of the NDPS Act prevail.
    
2. Union of India v. Niyazuddin & Anr. (2018) 13 SCC 738: The Supreme Court laid emphasis on the fact that the court needs to fulfill the two requirements provided under Section 37 of the NDPS Act, along with following the guidelines under the CrPC and other prevailing laws. It further explained that in case of conflict between the provisions of the NDPS Act (Section 37) and the CrPC (Section 437), the provisions of the NDPS Act will prevail.
    
3. Union of India v. Thamisharasi & Ors., JT 1995 (4) SC 253: The court observed the necessity to prioritize the provisions of the NDPS Act when dealing with drug-related offenses, emphasizing strict compliance with Section 37.

In this case, the apex court held that the restriction on the power to grant bail under Section 437 of the Cr. P.C. is like a limitation on that power, provided there are reasonable grounds for the court to believe in the accused's guilt. On the other hand, the limitation under Section 37 of the NDPS Act serves as a condition precedent for exercising the power to grant bail. Hence, the accused cannot be granted bail unless the court is satisfied that there are reasonable grounds to believe in the innocence of the accused.

Under Section 437 of the Cr. P.C., the prosecution is responsible for proving the existence of reasonable grounds to support the belief in the accused's guilt, which triggers the restriction on bail. In contrast, under Section 37 of the NDPS Act, the accused must present evidence to demonstrate grounds for their innocence in order to satisfy the condition precedent and lift the restriction on granting bail.

Confession made under Narcotics Drugs & Psychotropic Substances Act
In the case of Tofan Singh v. State of Tamil Nadu (2020) AIR 2020 SC 798, the Supreme Court of India, under the guidance of Justices Nariman and Navin Sinha, held that statements or confessions made under the Narcotic Drugs and Psychotropic Substances (NDPS) Act cannot be treated as confessional statements. The court stated that such statements would offend constitutional safeguards and, for that reason, cannot be accepted as evidence to convict an individual.

Conclusion:
The process of obtaining bail in Narcotics Drugs And Psychotropic Substances (NDPS) Act, cases in India is a matter of great legal concern especially for NRIs. The important point is, while dealing with anti drug law under NDPS Act, the primary 72 objective of that law should not be disregarded, that is, the right to immediate personal liberty. It is the court that assists to protect the fairness and equity in the administration of bail by paying attention to the particulars and particulars of the case.

Written By:

• Deepak Giri,
• Harsh Pandey And
• Ansu Nishad

Under Guidance of Advocate Rohit Dandriyal