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Synopsis

The Supreme Court has said that adopting a liberal approach in granting bail to an accused involved in carrying commercial quantity of contraband in disregard to limitations fixed under the Narcotic Drugs and Psychotropic Substances Act is impermissible.

A bench of Justices C T Ravikumar and Prashant Kumar Mishra allowed an appeal filed by the Meghalaya government against bail granted by the high court to an HIV positive woman arrested with contraband substance viz heroin of 1.040 Kgs, much above the commercial quantity, terming it as "a very serious lapse".

The woman was granted bail twice due to her only being HIV positive, though both the cases were related to commercial quantity of contraband.

After hearing Advocate General Amit Kumar for Meghalaya, the bench said that there cannot be any doubt with respect to the position that in cases involving commercial quantity of narcotic drugs or psychotropic substances, while considering the application of bail, the court is bound to ensure satisfaction of conditions under Section 37(1)(b)(ii) of the NDPS Act. 

The provision reads “37(1)(b)(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.”

While considering the cases under NDPS Act, one cannot be oblivious of the objects and reasons for bringing the said enactment after repealing the then existing laws relating to the Narcotic drugs, the bench said.

Referring to 'Collector of Customs, New Delhi Vs Ahmadalieva Nodira' (2004), the bench said that the reasonable grounds in the provision means something more than the prima facie grounds and that it contemplates substantial and probable causes for believing that the accused is not guilty of the alleged offence. 

"As relates the twin conditions under Section 37(1)(b)(ii) of the NDPS Act, viz, that, firstly, there are reasonable grounds for believing that the accused is not guilty of such offence and, secondly, he is not likely to commit any offence while on bail it was held therein that they are cumulative and not alternative. Satisfaction of existence of those twin conditions had to be based on the ‘reasonable grounds’," the bench pointed out.

In the decision in 'State of Kerala and Ors Vs Rajesh and Ors' (2020), the bench noted that it  held that the exercise of power to grant bail in such cases is not only subject to the limitations contained under Section 439 of the Code of Criminal Procedure, but also subject to the limitation placed by Section 37(1)(b)(ii), NDPS Act. Further, it was held that in case one of the two conditions thereunder is not satisfied the ban for granting bail would operate.

Thus, "while considering the application for bail made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications," the bench said.

The court noted Smt X (identity concealed) was enlarged on bail by the high court as per order of June 27, 2023 in a previous case, despite the opposition of the public prosecutor, taking note of her being HIV positive.

In the subject FIR, she was arrested with contraband of 1.040 kgs heroin. 

The impugned order granting bail to accused on September 29, 2023 would reveal, this time also, the bail was granted on the ground that she is suffering from HIV and conspicuously, without adverting to the mandate under Section 37(1)(b)(ii), NDPS Act, even after taking note of the fact that the rigour of Section 37, NDPS Act, calls for consideration in view of the involvement of commercial quantity of the contraband substance. 

"When the accused is involved in offences under Section 21(c)/29 of NDPS Act more than one occasion and when the quantity of the contraband substance viz heroin is 1.040 Kgs, much above the commercial quantity, then the non-consideration of the provisions under Section 37, NDPS Act, has to be taken as a very serious lapse," the bench said.

The bench further said in cases of like nature, granting bail solely on the ground mentioned, relying on the decision in 'Bhawani Singh Vs State of Rajasthan' (2022) would not only go against the spirit of the said decision but also would give a wrong message to the society that being a patient of such a disease is a license to indulge in such serious offences with impunity. In the contextual situation it is to be noted that in Bhawani Singh’s case the offence(s) involved was not one under the NDPS Act, it added.

"We have no hesitation to say that in the above circumstances it can only be held that the twin conditions under Section 37 of the NDPS Act, are not satisfied and on the sole reason that the accused is a HIV patient, cannot be a reason to enlarge her on bail," the bench held. 

The court pointed out since the impugned order was passed without adhering to the said provision and in view of the rigour thereunder the accused-Smt X was not entitled to be released on bail.

It, therefore, set aside the high court's order and directed the woman to surrender within a week.

The court, however, clarified that in view of the indisputable fact that Smt X is HIV positive, she is entitled to the benefit under Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, which mandated her case to be taken up on priority basis.

"In view of the said provision the trial Court shall take appropriate steps to expedite the trial on priority basis and to dispose of the case as early as possible," the bench said.