An Overview of the NDPS Act with Provisions Regarding Bail & Confession

Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Introduction

The NDPS Act has been enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to Narcotic Drugs and Psychotropic Substances. The act prohibits the production, manufacturing, cultivation, possession, sale, transportation, purchasing and consumption of any Narcotic Drugs and Psychotropic Substances.

However, during the passage of time and the development in the field of illicit drugs traffic and drug abuse, many deficiencies in the existing laws have come to notice, in particular with provisions regarding Bail (sec.37) and as to the admissibility of the confession made by the Accused (sec.67).

Understanding Sec. 37 of the NDPS Act & powers of the High Court to grant Bail under Sec. 439 CrPC  

A perusal of Sec. 37 of NDPS Act shows that it starts with a non-obstante clause stating that, Notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on Bail unless the conditions contained therein were satisfied. Both the grounds must be satisfied before granting Bail i.e.

  1. The Public Prosecutor must be given an opportunity to oppose the application for such release, and
  2. 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.

Criminal Procedure Code is not applicable where any different procedure has been prescribed by any law. Since the Act prescribes a separate provision for Bail, the general provisions of Bail under the CrPC will not be applicable. The Act has been enacted with a view to making stringent provisions for the control and regulation of the operations relating to NDPS. That being the underlying object of the Act, Sec. 37 of the Act, in negative terms limits the scope of the applicability of the provisions of the CrPC regarding bail and it cannot be held that the High Court’s power to grant Bail under Sec. 439 of the CrPC are not subject to limitations mentioned under Sec. 37 of the Act.

Considerations for granting bail under NDPS Act

Before granting bail, the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of the fact, the police report have to be closely examined before recording a finding as to whether the conditions given under the said section, are fulfilled or not.

Powers of the High Court under Sec. 439 of CrPC are curtailed in any way except that they are to be exercised with embargo and conditions as laid down under Sec. 37 of the Act. 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 have required the court to record a finding of its satisfaction of certain facts, the duty cast on the court is in positive terms. Grant of Bail is a rule and its rejection is an exception.

Grounds for Cancellation of Bail

What has been stated in Sec. 37 of the Act would be applicable, accordingly when the question of release on bail is considered. But once an accused has been released on Bail, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which Bail can be otherwise cancelled. The important grounds for cancellation of Bail are –

  1. Where the accused misuses his liberty by indulging in similar criminal activity,
  2. Interferes with the course of the investigation,
  3. Attempts to tamper with evidence or witnesses,
  4. Likelihood of fleeing, etc.

Non-compliance with mandatory provisions regarding Sec 42 & 50 of the Act

 The provisions of Sec. 42 and 50 are mandatory in nature and contravention of the said sections will not only vitiate the entire proceedings but will also entitle the accused for Bail and in certain cases for acquittal as well.

The provisions of Sec. 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. Compliance of Sec.42 is mandatory and there cannot be an escape from its strict compliance.

The provisions of Sec. 42, 50 & 57 of the NDPS Act have been made with a purpose, for a putting check on the powers of the Investigating officers under Chp. IV of the NDPS Act. When there is non-compliance of these provisions, it must be held that at any rate the evidence of the Police Officer who failed to comply with the said provisions, cannot be relied upon implicitly to base the conviction.

Whether Confessional Statements made under Sec. 67 of the NDPS Act is admissible in a Court of Law

One of the most vexed questions of law involved in the NDPS cases are, Whether the powers given to empowered officer u/s 67 NDPS Act are akin and in pari materia with the powers u/s 161 Code of Criminal Procedure (CrPC)? Whether the empowered officer can record confession of the accused u/s 67 NDPS Act? Whether the confessional statement made by accused before officer empowered u/s 42 NDPS Act is admissible in evidence? If yes, whether it can be used against himself and co- accused? Whether empowered officers under NDPS Act are police officers?

“25. Confession to police officer not to be proved. – No confession made to a police officer, shall be proved as against a person accused of any offence.”

Meaning thereby, no confession made before officer-in-charge of police station investigating offence under NDPS Act is admissible and hence, cannot be relied upon as officer-in-charge of police station is a police officer. Thus, confession of an accused, under NDPS Act, can only be recorded by an officer-in-charge of concerned police station conducting investigation or the officer empowered by the government u/s 53 NDPS Act. However, the officer empowered to investigate u/s 53 are also police officers within the meaning of section 25 Evidence Act. Thus, the confession recorded by an officer empowered to investigate u/s 53, can never be admissible in the eyes of law, unless there is such express provision in the NDPS Act, as it would be against the policy and object of section 25 Evidence Act.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

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