Important Point
In case of offences under the NDPS Act the jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Section 37 r/w Sections 437 and 439 of Code of Civil Procedure—Bail—Restriction on Courts power to grant—Jurisdiction of Court is circumscribed by provisions of Section 37—Accused should not be released on bail during trial unless mandatory conditions provided in Section 37 i.e. reasonable ground for believing that accused is not guilty and he is not likely to commit any offence on bail are satisfied—Cryptic order of bail is not permissible.
       Held : The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. (Para 5)
       It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,
        (i) there are reasonable grounds for believing that accused is not guilty of such offence; and
        (ii) that he is not likely to commit while on bail are satisfied. (Paras 6 & 7)
       Result : Appeal allowed.

Judgment

Shah, J.—Leave granted.

2. As respondent No. 1 has not engaged any counsel, the Registry was directed to appoint an advocate as amicus curiae. We have heard the learned counsel for the parties. Only question involved in this appeal is whether the order passed by the High Court of Judicature at Allahabad, Lucknow Bench, granting bail to the respondent No. 1 Ram Samujh Yadav requires to be set aside on the ground that the High Court ignored the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”) as well as the law laid down by this Court.

3. It is alleged by the prosecution that on 21st May, 1997, a raid by the authorities of the Narcotic Department was carried out at the tubewell house of Respondent No. 1 and 5 Kg. of Opium was recovered. The Sessions Judge by the detail reasoned order dated 11th July, 1997 rejected the bail application after hearing Special Public Prosecutor (Narcotics) and considering the material on record.

4. The High Court granted bail by a cryptic order dated 20th August, 1998 which is extracted below :–

“The applicant is in jail since 22.5.1997 and trial has not concluded.

Applicant Ram Samujh is admitted to bail in case crime No. 15 of 97, under Sections 8/18 N.D.P.S. Act, P.S. Kotwali, Barabanki, district Barabanki, on his furnishing a personal bond and two sureties, each in the like amount to the satisfaction of Special Judge (N.D.P.S. Act), Barabanki and on the condition that the applicant shall report at the Police Station first and sixteenth of every month till the trial lasts.”

5. The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus :

“37. Offences to be cognizable and non-bailable :

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 :–

(a) every offence punishable under this Act shall be cognizable;

(b) 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.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting bail.”

The aforesaid Section is incorporated to achieve the object as mentioned in the Statements of Objects and Reasons for introducing the Bill No. 125/1988 thus :

“Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt.”

6. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society

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Cases Referred (1)