Case Note & Summary
The judgment pertains to two criminal anticipatory bail applications filed by the same applicant, who was apprehending arrest in connection with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of commercial quantity of ganja. The applicant sought pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC). The prosecution opposed the applications, arguing that the twin conditions under Section 37 of the NDPS Act bar the grant of bail when the quantity involved is commercial. The court examined the provisions of Section 37 of the NDPS Act, which imposes stringent conditions for granting bail: the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. The court noted that the quantity of ganja recovered was commercial, attracting the rigours of Section 37. The court also considered the scope of Section 438 CrPC and held that the power to grant anticipatory bail is not absolute and must yield to the special provisions of the NDPS Act. The court relied on several precedents, including Union of India v. Ram Samujh (2001) 6 SCC 181, State of Kerala v. Rajesh (2022) 14 SCC 323, and others, which held that the conditions under Section 37 are mandatory and must be satisfied before granting bail. The court found that the applicant failed to satisfy the twin conditions and dismissed both anticipatory bail applications. The court also directed the trial court to expedite the trial and complete it within six months.
Headnote
A) Criminal Procedure Code - Anticipatory Bail - Section 438 CrPC - Applicability under NDPS Act - The court considered whether anticipatory bail under Section 438 CrPC can be granted when the accused is charged with offences under the NDPS Act involving commercial quantity. Held that the stringent conditions under Section 37 of the NDPS Act override the general provisions of Section 438 CrPC, and anticipatory bail cannot be granted if there are reasonable grounds to believe the accused is guilty of an offence involving commercial quantity. (Paras 1-25) B) Narcotic Drugs and Psychotropic Substances Act - Bail - Section 37 - Twin Conditions - The court examined the twin conditions under Section 37 of the NDPS Act, which require the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Held that these conditions must be satisfied before granting bail, and in cases involving commercial quantity, the bar is absolute unless the conditions are met. (Paras 10-15) C) Criminal Procedure Code - Anticipatory Bail - Section 438 CrPC - Maintainability under Special Statutes - The court discussed the interplay between Section 438 CrPC and special statutes like the NDPS Act. Held that the power to grant anticipatory bail under Section 438 CrPC is not available in respect of offences under the NDPS Act involving commercial quantity, as the special provisions of Section 37 NDPS Act prevail. (Paras 16-20)
Issue of Consideration
Whether anticipatory bail can be granted to an accused charged with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 involving commercial quantity of contraband, in light of the twin conditions under Section 37 of the NDPS Act.
Final Decision
Both Criminal Anticipatory Bail Application No. 29 of 2023 and Criminal Anticipatory Bail Application No. 20 of 2023 are dismissed. The trial court is directed to expedite the trial and complete it within six months.
Law Points
- Twin conditions under Section 37 of NDPS Act
- Commercial quantity presumption of guilt
- Anticipatory bail not maintainable for offences under NDPS Act with commercial quantity
- Section 438 CrPC not applicable in view of Section 37 NDPS Act
