Every punishment that does not arise from absolute necessity, Montesquieu says, is tyrannical. A more general proposition reads as thus: every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical.

The jurisdiction of the court to grant bail is circumscribed by the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Code of Criminal Procedure (CrPC), but is also subject to the limitation placed by Section 37, which begins with a non-obstante clause.

Ordinarily, on a bare reading of these provisions, it would look as if the court is to adopt a negative approach and to decline bail. But when the legislature has required the court to record a finding of its satisfaction of certain facts, the duty cast on the court is in positive terms. Powers of the High Court under Section 439 of CrPC have not been curtailed in any way except that they are to be exercised with embargo and after considering conditions as laid down under Section 37 of the Act. Thus, the grant of bail is a rule and its rejection is an exception as long as the mandate of the legislature as required by the provisions of the NDPS Act is followed.

Conditions for grant of bail

The operative part of Section 37 is in a negative form, prescribing the enlargement of bail to any person accused of commission of an offence under the Act only if two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence. If either of these two conditions is not satisfied, the bar on granting bail operates.

A court, in considering the application for bail with reference to Section 37 of the Act, is not called upon to record a finding of guilt. The court is merely called upon for the limited purpose confined to the question of releasing the accused on bail, to see if there are reasonable grounds for believing that the accused is not guilty. It is required to record its satisfaction regarding the existence of such grounds and whether the accused is likely to commit any offence while on bail.

Reasonable grounds

The Supreme Court in State of Kerala v. Rajesh held that the expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

In Shiv Shanker Kesari, it was held that the word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. Referring to Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar, the judgment reads,

"Stroud’s Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy."

Further, it was noted that in the ultimate analysis, whether a particular act is reasonable or not depends on the circumstances in a given situation.

Possession

An offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27A, 29, 60(3), prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. Possession has been examined with reference to the factual backdrop of the case by the Supreme Court in Madan Lal and Another v. State of Himachal. The Court held that the expression “possession” is a polymorphous term which assumes different colours in different contexts and may carry different meanings in contextually different backgrounds.

Section 20(b), which makes possession of contraband articles an offence, appears in Chapter IV of the Act, which relates to offences for possession of such articles. In order to make the possession illicit, there must be a conscious possession and that possession must be coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession.

Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where also presumption is available to be drawn from possession of illicit articles.

What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another.

In Mohan Lal v. State of Rajasthan, Supreme Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

Grounds for cancellation of bail

Section 37 of the NDPS Act would be applicable when the question of release on bail is considered. But once an accused has been released on bail, the regular criminal law would spring into action and bail would be open to be cancellation only on these grounds:

i. Where the accused misuses his liberty by indulging in similar criminal activity;

ii. Interferes with the course of investigation;

iii. Attempts to tamper with evidence or witnesses;

iv. Likelihood of fleeing, etc.

The Aryan Khan case

The bail applications filed in the cruise ship drug case by Aryan Khan and three others case before a Mumbai Sessions Court were opposed by Narcotics Control Bureau (NCB) on the ground that they were charged of illicit drug trafficking and criminal conspiracy under the NDPS Act. It was submitted that the NCB was trying to uncover an international drug trafficking chain and that their custody was essential to avoid any kind of influence on the other witnesses.

Additional Solicitor General Anil Singh submitted,

"The record in the panchnama signed by the applicant establishes that he was in conscious possession of contraband because he admits it was with his friend and it was for consumption of both of them."

For this reason, it was argued that they ought not be released at a preliminary stage of the investigation.

This was opposed by Senior Counsel Amit Desai, who pointed out that though Khan’s bail was opposed by invoking Section 27A and Section 29 of the NDPS Act - provisions which lay down some of the most serious offences in the Act - none of these sections had even been invoked against him in the arrest memo and that there was admittedly no recovery of drugs or any banned substance from Khan.

The investigation revealed that allegations levelled against all the accused are in respect of consumption, sale and purchase, with intermediate quantity as well as commercial quantity of narcotic drugs and psychotropic substances allegedly being seized, for which the punishment prescribed is more than three years.

The Special Judge under NDPS Act is likely to pronounce his verdict on the bail application on October 20.

Author is an advocate practicing in the Supreme Court of India