The main legal point established is that the offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act is a bailable offence, and an accused person may be discharged as an indigent person under the first proviso to Section 436(1) Cr.P.C.

The present request of the petitioner is to extend the benefit under the first proviso to Section 436(1) Cr.P.C. to him by treating him as an indigent person for the purpose of the proviso.

2. The petitioner is the accused in Crime No.36 of 2015 of the Excise Enforcement and Anti Narcotic Special Squad, Ernakulam, registered for the offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985. As he was found in possession of a small quantity of ganja, the petitioner was placed under arrest on 06.12.2015. Still, he is undergoing detention.

3. The crux of the matter is whether the offence under Section 20(b)(ii)(A) is a bailable offence or not? Going by the caption of Section 37 of the N.D.P.S. Act, at the first blush, it may appear that all the offences under the N.D.P.S. Act are non bailable and cognizable. At the same time, Section 37(1)(a) says that every offence punishable under that Act shall be cognizable. There, the legislature has not incorporated the term 'non bailable' also. The caption of the Section should precisely be one representing the contents of the Section. When the detailed provision contained under Section 37 of the Act do not show that every offence under the Act are non bailable, especially when it has been clarified in the Section that every offence punishable under that Act is cognizable, it has to be noted that the legislature has never thought of making every offence under the Act as non bailable. Therefore, it should go by the general law as per the Code of Criminal Procedure, to decide as to whether an offence under the N.D.P.S. Act is bailable or not. When the offence under Section 20(b)(ii)(A) of the N.D.P.S. Act is punishable with rigorous imprisonment for a term which may extend to one year, or with fine or with both only, it has to be noted that the said offence is necessarily a bailable one.

4. The aforesaid position was clarified in the decision in Shaji v. Kerala State [2004 (3) KLT 270(DB)] which was subsequently followed in the decision in Mathew v. State of Kerala[2008(1) KLT 915]. When there is an ambiguity in the caption of a particular Section in an enactment with the contents of that particular Section, the contents of the Section have to be followed and one should not go by the caption alone to arrive at the correct meaning of the provision in the enactment

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5. Here, admittedly the petitioner was arrested on 06.12.2015. He is still undergoing detention. As per the first proviso to Section 436(1) Cr.P.C., if a person, who is detained is an indigent person, and is unable to furnish security, instead of taking bail from such person, the court shall discharge him on his executing a bond without sureties for his appearance. The explanation to the said proviso says that if a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the court to presume that he is an indigent person for the purposes of that proviso.

6. Matters being so, in this particular case the petitioner has to be treated as an indigent person within the meaning of the first proviso to Section 436(1) Cr.P.C., and therefore, the court below shall discharge him on his executing a bond without sureties for his appearance. The court below shall take note of the fact that the term 'discharge' here is one meant for enabling the person to be on bail and not the discharge within the meaning of the other provisions in the Code of Criminal Procedure.

In the result, this Crl.M.C. is allowed and the orders passed by the court below thereby denying the benefit to the accused as an indigent person, are set aside. The court below is directed to enlarge the petitioner on bail, on his executing a self-bond without sureties for his appearance. It is made clear that the petitioner shall be bound by the provisions contained in Section 436(2) Cr.P.C.