Bail under NDPS Act, 1985

Introduction

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was enacted to combat the menace of drug trafficking and drug abuse in India. Recognizing the severe impact of narcotics on public health and social order, Parliament introduced this legislation with stringent provisions.

Among these, one of the most debated issues has been the grant of bail. Unlike normal criminal cases where bail is a rule and jail is an exception, under the NDPS Act, the philosophy appears reversed—jail is the rule and bail is an exception. This strict stance arises from the gravity of offences, the involvement of organized crime, and India’s international obligations under UN conventions.

In recent years, the issue of bail under the NDPS Act has gained greater attention due to concerns over overcrowded prisons, prolonged undertrial detention, and the constitutional guarantee of personal liberty under Article 21 of the Indian Constitution.

Table of Contents

Concept of Bail under General Criminal Law

Under the Code of Criminal Procedure, 1973 (CrPC), the general principle is that bail should be granted unless there are reasonable grounds to believe that the accused may abscond, tamper with evidence, or repeat the offence.

Bailable Offences (Section 436 CrPC): Bail is a matter of right.
Non-Bailable Offences (Sections 437 & 439 CrPC): Bail is discretionary, subject to judicial satisfaction.

The Supreme Court in Gurbax Singh Sibbia v. State of Punjab (1980) 2 SCC 565 held that “bail is the rule and jail the exception.”

However, in special legislations like the NDPS Act, the stringent bail provisions override the general law due to Section 37 of the Act.

Bail Provisions under the NDPS Act

The NDPS Act contains some of the most restrictive bail conditions in Indian criminal law.

Section 37 – The Heart of Bail Restrictions Section 37 NDPS Act lays down:
1. All offences under the Act are cognizable and non-bailable.
2. For offences involving commercial quantity of drugs, bail shall not be granted unless:
  - The Public Prosecutor has been given an opportunity to oppose bail; and
  - The court is satisfied that there are reasonable grounds to believe that:
    1. The accused is not guilty of such offence
    2. The accused is not likely to commit any offence while on bail
This “twin condition” makes bail extremely difficult to secure.
Section 36(A) – Special Courts

Special NDPS Courts are empowered to try offences and decide bail applications. Detention during investigation can extend up to 180 days (instead of 90 days under CrPC), further reflecting the strict approach.

Judicial Interpretation and Case Laws

The judiciary has played a crucial role in interpreting bail provisions:

Union of India v. Thamisharasi, (1995) 4 SCC 190 – Supreme Court upheld the stringent bail conditions and clarified that Section 37 overrides CrPC provisions.
Union of India v. Rattan Mallik, (2009) 2 SCC 624 – Court emphasized that satisfaction regarding “reasonable grounds” must be based on substantial probable cause, not mere suspicion.
State of Kerala v. Rajesh, (2020) 12 SCC 122 – SC reiterated that Section 37 imposes stringent conditions and bail cannot be granted lightly in commercial quantity cases.
Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 – Court stressed that Section 37 requires strict compliance and liberal interpretation is impermissible.
Mohd. Sahabuddin v. State of Assam, 2012 Cri LJ 2144 (Gau HC) – High Court held that small quantity cases may not attract Section 37 restrictions strictly.

Challenges in Granting Bail under NDPS Act

Presumption of guilt – Unlike general law, the burden often shifts on the accused to prove innocence.
Stringent conditions – Courts rarely record satisfaction about both conditions under Section 37.
Delay in trial – Prolonged incarceration occurs due to lengthy investigation and trial.
Possibility of misuse – Innocent carriers or addicts often suffer due to the same stringent provisions meant for drug traffickers.

Recent Judicial Approach

Courts have recently tried to balance individual liberty with societal interest:

Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 – Supreme Court held that confessional statements to NDPS officers are inadmissible, giving relief to accused in bail matters.
Satpal Singh v. State of Punjab, (2018) 13 SCC 813 – SC emphasized that a liberal approach in bail under NDPS cannot be adopted due to seriousness of offences.

High Courts have occasionally granted bail in cases of long pre-trial detention, holding that the right to a speedy trial is part of Article 21 of the Constitution.

Comparative Perspective

General Criminal Law (CrPC): Bail is a rule, jail an exception.
NDPS Act: Bail is an exception, jail the rule, especially in commercial quantity cases.
Special Circumstances: For offences involving small quantity or addicts sent for rehabilitation (Section 39), bail can be considered more liberally.
Global Perspective: In jurisdictions like the U.S. and U.K., bail is often determined by risk assessment of flight or re-offending, not a statutory bar.

India’s approach under NDPS is thus among the strictest worldwide.

Conclusion & Suggestions

The NDPS Act reflects India’s commitment to fight drug trafficking, but the harsh bail provisions often result in prolonged imprisonment without conviction. While the seriousness of drug offences cannot be ignored, excessive restrictions may violate the fundamental right to liberty under Article 21.

Suggestions:

Distinguish between drug addicts, petty offenders, and organized traffickers while deciding bail.
Ensure speedy trials to reduce undertrial population.
Adopt a reformative approach for addicts by promoting rehabilitation instead of prolonged incarceration.
Courts must interpret Section 37 cautiously to prevent miscarriage of justice.
Legislative reforms may be considered to strike a balance between national security concerns and individual liberty.

References

Statutes & Books

The Narcotic Drugs and Psychotropic Substances Act, 1985 (Bare Act).
Code of Criminal Procedure, 1973 (Bare Act).
Ratanlal & Dhirajlal, The Code of Criminal Procedure (LexisNexis, 2023 Edition).
P.S.A. Pillai, Criminal Law (LexisNexis, 2021 Edition).

Case Law

Gurbax Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
Union of India v. Thamisharasi, (1995) 4 SCC 190.
Union of India v. Rattan Mallik, (2009) 2 SCC 624.
Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798.
State of Kerala v. Rajesh, (2020) 12 SCC 122.
Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1.
Satpal Singh v. State of Punjab, (2018) 13 SCC 813.
Mohd. Sahabuddin v. State of Assam, 2012 Cri LJ 2144 (Gau HC).

Reports & Articles

Law Commission of India, Report No. 177 on Law Relating to Arrest (2001). [Available at: https://lawcommissionofindia.nic.in/reports.htm]
K. Chaturvedi, NDPS Act and Bail Jurisprudence in India, (2021) Journal of Indian Law Institute.
SCC Online Blog – Stringent Bail Provisions under NDPS Act: Judicial Trends.

Written By:

Gunnidhiraj Singh Panwar, B.A. LL.B. (Hons.), 4th Year – Mohanlal Sukhadia University, Udaipur

Bhupendra Singh Shekhawat, B.A. LL.B. (Hons.), 4th Year – Mohanlal Sukhadia University, Udaipur

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