2020 Supreme(Bom) 1466

IN THE HIGH COURT OF BOMBAY
Sarang V. Kotwal, J.
Rhea Chakraborty - Appellants
Vs.
The Union of India and Ors. - Respondent
Criminal Bail Application (Stamp) No. 2386 of 2020
Decided On : 07-10-2020

Headnote:

The Court held that the offences under the NDPS Act are cognizable and non-bailable. The Court further held that the rigors of Section 37 of the NDPS Act, which restrict the grant of bail, apply to offences punishable with imprisonment of five years or more. The Court also held that the concept of "financing" and "harboring" under Section 27A of the NDPS Act requires a mental element and that the mere act of providing money for a particular transaction or other transactions will not be considered "financing" of that activity.

Fact of the Case:

The Applicant, a Bollywood actress, was arrested by the Narcotics Control Bureau (NCB) for alleged involvement in the procurement of drugs for the late actor Sushant Singh Rajput. The NCB alleged that the Applicant had financed the illicit trafficking of drugs and had harbored Sushant Singh Rajput, knowing that he was consuming drugs. The Applicant was charged under various provisions of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), including Sections 8(c), 20(b)(ii), 22, 27A, 28, 29, and 30.

Finding of the Court:

The Court found that the Applicant was not guilty of any offence punishable under Sections 19, 24, or 27A of the NDPS Act, or any other offence involving commercial quantity. The Court also found that there were reasonable grounds for believing that the Applicant was not likely to commit any offence while on bail.

Issues: 1. Whether the offences under the NDPS Act are cognizable and non-bailable. 2. Whether the rigors of Section 37 of the NDPS Act, which restrict the grant of bail, apply to offences punishable with imprisonment of five years or more. 3. Whether the concept of "financing" and "harboring" under Section 27A of the NDPS Act requires a mental element. 4. Whether the mere act of providing money for a particular transaction or other transactions will be considered "financing" of that activity.

Ratio Decidendi: 1. The Court held that the offences under the NDPS Act are cognizable and non-bailable based on the plain language of Section 37 of the NDPS Act, which states that "every offence punishable under this Act shall be cognizable". The Court also considered the Statement of Objects and Reasons of the NDPS Act, which stated that the Act was intended to "consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith." 2. The Court held that the rigors of Section 37 of the NDPS Act, which restrict the grant of bail, apply to offences punishable with imprisonment of five years or more based on the plain language of Section 37(1)(b) of the NDPS Act, which states that "no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." 3. The Court held that the concept of "financing" and "harboring" under Section 27A of the NDPS Act requires a mental element based on the plain language of Section 27A, which states that "whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees". The Court also considered the Statement of Objects and Reasons of the NDPS Act, which stated that the Act was intended to "attack the basic cause of illicit traffic of drugs". 4. The Court held that the mere act of providing money for a particular transaction or other transactions will not be considered "financing" of that activity based on the plain language of Section 27A of the NDPS Act, which states that "whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees". The Court also considered the Statement of Objects and Reasons of the NDPS Act, which stated that the Act was intended to "attack the basic cause of illicit traffic of drugs".

Final Decision: The Court allowed the Applicant's bail application and directed her to be released on bail on furnishing a PR bond in the sum of Rs. 1,00,000/- (Rupees One Lakh Only) with one or two sureties in the like amount. The Court also imposed various conditions on the Applicant, including that she shall not leave the country without prior permission from the Special Judge for NDPS at Greater Mumbai, that she shall attend the office of the investigating agency on the first Monday of every month between 10:00 a.m. to 11:00 a.m. to mark her presence, for a period of six months, and that she shall attend all the dates in the Court unless prevented by any reasonable cause.