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S.RAVINDRA BHAT, S.P.GARG
Minnie Khadim Ali Kuhn – Appellant
Versus
State NCT Of Delhi – Respondent
What is the distinction between bailable and non-bailable offences under the NDPS Act? What is the applicability of the Criminal Procedure Code in granting bail for offences under the NDPS Act? How to grant bail for offences involving small quantities of substances under the NDPS Act?
Key Points: - The main legal point is the distinction between bailable and non-bailable offences under the NDPS Act and the applicability of the Criminal Procedure Code in granting bail (!) . - The petitioner sought the release of her son, detained for alleged possession of charas, and challenged the refusal of bail (!) . - The petitioner argued that possession of a small quantity of charas under Sections 20 and 21 of the NDPS Act is a bailable offence (!) . - The court found that the petitioner's son was entitled to bail for the offence of possessing a small quantity of charas under Section 21 of the NDPS Act (!) . - The court held that except for specific offences enumerated under Section 37 of the NDPS Act, the normal law, i.e., the Criminal Procedure Code, is applicable for bail (!) . - The court emphasized the distinction between bailable and non-bailable offences under the NDPS Act (!) . - The court directed the Police Commissioner to issue guidelines for the release of suspects in future cases where offences are bailable (!) . - The heading of Section 37 of the NDPS Act stating all offences are non-bailable does not bind the court; the enacted provision must be applied [11000340090013]. - The non-obstante clause in Section 37(1) overrides conflicting provisions, but its scope is determined by what it seeks to override and the legislative policy [11000340090014]. - The offence of possession of a small quantity of charas under Section 21 of the NDPS Act is bailable by virtue of Section 436 of the Cr.PC [11000340090017].
S.RAVINDRA BHAT, J.
1. The writ petitioner, in these proceedings under Article 226 of the Constitution, seeks a direction that her son’s detention by the respondents and refusal to grant bail, was unlawful. He seeks a direction to quash his detention, and further consequential proceedings.
2. The facts leading to the filing of the present writ are that on 01.03.2012 at around 12 PM a police official of P.S Maurice Nagar went to the office of the Principal, St. Stephen’s College (hereafter “the college”) with a bag that he claimed he had found in the Kamla Nehru Ridge. The Vice Principal of the college was asked about the contents of the bag and a statement was recorded, which said that the bag contained some black substance; by 8 PM other police officials had reached the college. It is alleged that the bag containing the black substance belonged to the petitioner’s son. It is alleged that the police officials repeatedly stated in the presence of the College Vice Principal, teachers, lawyers and other students that there was 100 gms of charas. The petitioner asserts that it was not known whether any testing of the substance was done. The police refused to take on record
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