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Court may grant bail application for offenses under Section 37 of the NDPS Act only after considering the prima facie merits of the appeal: Supreme Court of India

Section 37 of the NDPS Act contains stringent requirements before an application for bail can be allowed. The Courts can allow a bail application only if the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is
not likely to commit any offence while on bail. This auspicious judgment was recently passed by the Supreme Court of India in the matter of THE STATE (GNCT OF DELHI) NARCOTICS CONTROL BUREAU V LOKESH CHADHA [CRIMINAL APPEAL NO 257 OF 2021] by Honourable Justice Dr Dhananjaya Y Chandrachud.

This appeal arises from the judgment of High Court of Delhi by which the application filed by the respondent seeking suspension of sentence under Section 389(1) of the Code of Criminal Procedure 1973 was allowed. The respondent was convicted under Sections 23(c) and 25A of the Narcotic Drugs and Psychotropic Substances Act 1985 and was sentenced to suffer rigorous imprisonment for ten years under Section 23(c) and for three years under Section 25A.

The facts of the case are, on 2 December 2015, the IO of the Narcotics Control Bureau, Delhi Zonal Unit received a phone call from DHL Courier regarding two parcels that were lying in their office and were suspected to contain narcotic drugs. When the two parcels were seized, 325 grams of heroin and 390 grams of pseudoephedrine was found in them.

The parcels were booked to a foreign destination, at the behest of a foreign national, by the co-accused who was an employee of the respondent and the respondent himself is a proprietor of the courier agency which had accepted the parcels initially for booking from the foreign national.

Consequently, the Special Judge, came to the conclusion that the offence stood established as against the respondent but the benefit of doubt was granted to the co-accused on the ground that he was only an employee who was acting at the behest of the respondent. An appeal has been filed before the High Court of Delhi by the respondent for the suspension of
the sentence which was granted.

The Court observed that “Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act.”

The Court relied on Preet Pal Singh v State of Uttar Pradesh to state that, “The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and the High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside.

The judgment and order of the High Court suspending the sentence of the respondent was set aside and the respondent was directed to surrender forthwith to the sentence. 

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