Anticipatory Bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985
Anticipatory Bail means a direction issued to release a person on Bail even before he is arrested. In this situation, there is an apprehension of arrest as the person is accused of a non-bailable offence. For such Bail, a person can file an application under Section 438 of the Code of Criminal Procedure (CrPC) which is issued only by the Sessions Court and High Court.
According to Section 438 of the Code of Criminal Procedure, 1973 the High Court or the Sessions Court may include directions or conditions depending upon the facts of the case as it may think fit including that :
● the person shall make himself available for interrogation by a police officer as and when required;
● the person shall not, directly or indirectly induce, make a threat or promise to any person connected with the facts of the case to prevent him from disclosing such facts to the Court or any police officer;
● the person shall not leave India without the prior permission of the Court;
The above-mentioned conditions are primary in nature whereas there are other several conditions which shall be duly taken into consideration before applying for the grant of Bail, by the Court.
Under the NDPS Act, violation of laws related to contraband substances like Ganja, Heroine, Cocaine etc. are classified under two categories i.e. according to the quantity of the substance involved, offences related to producing, possessing, selling, purchasing, transporting, consuming and importing prohibited substances in “Small Quantity” and those in “Commercial Quantity” respectively.
For instance, possessing 1 kg Ganja is a violation under the first category i.e. small quantity but possessing 20 kg is a violation under the second category i.e. commercial quantity. Similarly, 5 grams of Heroin or 2 grams of Cocaine respectively is considered a small quantity but 250 grams of Heroin or 100 grams of Cocaine is a commercial quantity. When the contravention involves small quantity then the punishment is different from that of commercial quantity.
In Gurbaksh Singh Sibbia and Others v. the State of Punjab (1980) 2 SCC 565 the Constitutional Bench emphasized that Section 438 has to be interpreted liberally and the principle of presumption of innocence in favour of the accused has to be considered while deciding a petition of Anticipatory Bail
In the NDPS Act, Anticipatory Bail application is filed under Section 483 of Cr. P.C. only and there is no special provision of anticipatory bail under the NDPS Act.
In NDPS Act under Section 37, when a person is accused of an offence punishable under Section 19 or 24 or 27A or for offences involving commercial quantity, he shall not be released on bail unless,
- The Public Prosecutor has been allowed to oppose the application for such release
- In case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail.
Materials on the record are to be seen and the antecedents of the accused are to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr. P.C. or any other law in force on the grant of bail.
Furthermore, in Satpal Singh vs. The State of Punjab (2018) 4 SCC 303, the Hon’ble Supreme Court held that though there’s no Specific Mention of Anticipatory Bail in NDPS Act, the Court cannot pass the order under Sections 438 or 439 Code of Criminal Procedure without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail.
Authored By: Adv. Anant Sharma & Chhatresh Kumar Sahu