Bail under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985
Bail refers to the temporary release of a person from legal custody on deposit of security and undertaking that he/she shall appear at the time and place designated and submit himself to the jurisdiction and judgement of the Court. It is originated from an old French word ‘bailer’ which means ‘to give’ or ‘to deliver’.
However, the basis of bail lies in the principle that there is a presumption of innocence of a person until he is found guilty. In most of the cases where bail is granted a sum of money or property has to be deposited to the Court as a guarantee that the accused will make an appearance back in Court whenever he/she is required.
As per Section 37 of the Act all the offences under the NDPS Act are cognizable and police can arrest without a warrant for these offences but according to the last entry in Part-II to the Schedule to the Code of Criminal Procedure, 1973 offences under sections 8A,26,27,32,46,47,58, and 59(1) and offences relating to small quantity are non-cognizable.
Under Section 37 of the NDPS Act, it is mentioned that when a person is accused of an offence punishable under Section 19, 24, 27A and for offences involving commercial quantity, the accused 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.
The Hon’ble Supreme Court in State of Kerala etc. vs. Rajesh etc., 2020 SCC 81 taking a liberal approach held that, while granting Bail under NDPS Act, the expression “reasonable grounds” in Section 37 means, ‘something more than prima facie grounds’ and the Court should consider necessary steps which are likely to be taken during the course of action of the accused, to believe that he/she is innocent.
Authored By: Adv. Anant Sharma & Chhatresh Kumar Sahu