Restrictions on bail in NDPS cases not applicable to constitutional courts: Allahabad High Court

The Allahabad High Court has ruled that the restrictions on the grant of bail under Section 37 of the Narcotic Psychotropic Substances Act, 1985 (NDPS Act) do not apply to constitutional courts (High Courts and the Supreme Court of India) [Vimal Rajput v. State of Uttar Pradesh Through Additional Chief Secretary]..In a June 5 ruling, Justice Subhash Vidyarthi concluded that these bail restrictions only apply to the special courts dealing with NDPS cases (trial courts). "I am of the considered view that the restrictions contained in Section 37 of the NDPS Act were meant to be applicable to Courts other than the Constitutional Courts and in view of the provision contained in Section 36-A (3) of NDPS Act, those restrictions do not apply to the Constitutional Courts," the Court held. .Generally, it is difficult to get bail in NDPS cases as Section 37 of the NDPS Act restricts the court's powers to grant bail to an accused in NDPS cases. Section 37 states that a court cannot grant bail without first hearing the public prosecutor and that if the prosecutor opposes bail, the accused should satisfy the following twin conditions:(i) reasonable grounds for believing that the accused is not guilty and;(ii) reasonable grounds to believe that the accused would not commit an offence or is not likely to commit an offence if granted bail.Nevertheless, Justice Vidyarthi pointed out that there is a proviso to Section 36A (3) of the NDPS Act, which saves the special powers of the High Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) when it comes to bail. The proviso stated that nothing "contained in this Section" shall affect the High Court's special powers regarding bail under Section 439, CrPC.However, the judge found that this proviso appeared to be out of place in Section 36A since Section 36A does not deal with bail. Rather, Section 36A only confers special courts the jurisdiction to deal with NDPS cases. The Court concluded that this proviso was added to Section 36A by mistake and that the lawmakers had meant to incorporate the said proviso in Section 37 of the NDPS Act, which provides for restrictions on the grant of bail."It appears that the provision contained in Section 36-A (3) of NDPS Act saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 37 of the Act, but it has erroneously been placed in the Section preceding Section 37 ... Undoubtedly, if the makers of the Act had themselves come across this jumbling of the provisions in Sections 36-A and 37 due to a copy-paste error, they have surely have straightened it out by reading Section 36-A(3) and Section 37 in conjunction with each other," the Court said..Justice Vidyarthi noted that a similar "copy-paste" error was also noted by the High Court earlier in the provisions concerning the grant of bail in money laundering cases under the Prevention of Money Laundering Act (PMLA). In the case of Ramji Singh v. Enforcement Directorate (2023), the High Court had concluded that "the provision contained in Section 44 (2) of PMLA saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 45.".The Court added that there were other laws (Anti-Hijacking Act, the Drugs and Cosmetics Act, 1940 etc.) as well which safeguard the special powers of the High Court to grant bail under Section 439 CrPC. In those laws, similar provisos were added to the provision on bail. .The Court concluded that it has to interpret Sections 36A and 37 of the NDPS Act collectively, to give life to the intention of the lawmakers. "Therefore, in order to correct the defect without altering the provisions of the Statute, the provisions of Sections 36-A and 37 have to be read together and interpreted harmoniously so that Section 36-A(3) does not become redundant or otiose," the Court held.Consequently, the Court concluded that constitutional courts are not bound by the special restrictions imposed on the grant of bail in Section 37 of the NDPS Act. .Having adopted this view, the Court proceeded to grant bail to a man booked for the possession of 7 kilograms of charas after noting that there appeared to be procedural violations in the seizure of the narcotic substance. The Court also factored in that the accused had no criminal history and that he has remained in jail since January 28, 2024. The Court added that there is no reason to apprehend that he would again commit a similar offence if released on bail. .Advocate Sumeet Tahilramani appeared for the bail applicant. Government Advocate Ranvijay Singh represented the State. .[Read Judgment]