BAIL UNDER NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 TO BE GRANTED BY THE COURT OF SESSIONS

Recently, the Narcotic Drugs and Psychotropic Substances Act, 1985 (the ‘#NDPS Act’) has been in the news and under much discussion due to some #highprofile #arrests for possession of #contraband #drugs.

The NDPS Act prohibits any individual from engaging in any activity consisting of production, cultivation, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance. The provisions regulate and prohibit the operations and usage relating to narcotics drugs and psychotropic substances. It lays down that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import, inter-State, export-inter-State, import into India, export from India or trans-ship any narcotic drug or psychotropic substance, except for medical or scientific purpose and to the extent provided by the provisions of the NDPS Act.

The Act further provides punishment for several offences under Sections 15–32 (Offences and Penalties). Moreover, bail under the NDPS Act cannot be given to accused that are charged under Sections 19, 24 or 27A and offences relating to commercial quantities of drugs under Section 37 of the NDPS Act.

On 03-10-2021, the Bollywood superstar Shah Rukh Khan’s son Aryan Khan along with 7 other co-accused were arrested in relation to possession of prohibited drugs on a cruise ship off the Mumbai coast by the Narcotics Control Bureau (‘NCB’), which is the nodal agency on the matter relating to drug law enforcement in India. The NCB detained the 8 Accused including Aryan Khan in a raid on the Cordelia Cruise Ship and charged the said Accused for committing offences under the provisions of the NDPS Act. They have been charged under Section 8 (Prohibition of certain operations) read with Section 20b (Punishment for contravention in relation to cannabis plant and cannabis), Section 27 (Punishment for consumption of any narcotic drug or psychotropic substance), Section 28 (Punishment for attempts to commit offences), Section 29 (Punishment for abetment and criminal conspiracy) and Section 35 (Presumption of culpable mental state) of the NDPS Act.

In this case, a total of 8 persons were arrested for possession of cocaine, MD (Mephedrone), Charas, MDMA (Ecstasy) and a large sum of money at the International Cruise Terminal, Mumbai. Under the NDPS Act, it is presumed that once an article is found in possession of an accused, he was in conscious possession of the article. However, the term possession carries different meanings in different contexts and circumstances therefore the same has to be decided with reference to the statutes applicable to the case.

On 04-10-2021, the said persons arrested in relation to the Cordelia Cruise Ship drug case were presented before the Magistrate Court, Mumbai. The Mumbai Court ordered and remanded the Accused in NCB Custody for detailed investigation till 07-10-2021.

Thereafter, Bail Applications were filed by the Accused Aryan Khan, Arbaz Merchant and Munmun Dhamecha in C.R. No. 94/2021 before the Court of Additional Chief Metropolitan Magistrate, Esplanade, Mumbai (‘Metropolitan Magistrate’). The Metropolitan Magistrate, vide its Order dated 08-10-2021 rejected Bail Applications as not maintainable in view of the Section 36A of the NDPS Act, which provides for offences triable by Special Courts. It was contented before the Magistrate Court, Mumbai that the issues involved in the case are triable by the Special Court of Sessions as per the provisions of the Criminal Procedure Code, 1973 (‘CrPC’).

The Metropolitan Magistrate observed that Section 36 of the NDPS Act also provides that all offences under the NDPS Act which are punishable with imprisonment for a term of more than 3 years shall be triable only by the Special Court, constituted for the area in which the offence has been committed or where there are more Special Courts than one of such areas, by such one of them as may be specified by the Government.

Section 36(1)(b) of the NDPS Act, provides that where a person accused of or suspected of the commission of an offence under the NDPS Act is forwarded to a Magistrate under Section 167 of the CrPC, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.

However, a plea was taken by the Accused, Aryan Khan that no narcotic drugs or psychotropic substance have been seized from him and as such Section 37 of the NDPS Act would not apply in the present facts and circumstances. It was further stated that there is no other credible or admissible material nor does the remand application make out ingredients under Section 8(c), 20(b), 27, 28, 29 read with 35 of the NDPS Act. The allegations would squarely fall within the ambit of section 20(b)(ii) for which 1 year of punishment is prescribed and offence is bailable in nature. The other Accused have also taken such similar pleas before the Court however the same was rejected.

It is significant to mention that Section 437 of the CrPC lays down the provision relating to when bail may be taken in case of non-bailable offences and provides that the Magistrate is competent to release on bail if the offence alleged is not punishable with death or imprisonment for life. Whereas Section 37 of the NDPS Act provides that every offence punishable under that Act shall be cognizable. The Section states that a person accused of an offence punishable under Sections 19, 24 and 27A of the NDPS Act and also for offences involving commercial quantity shall not be released on bail or on his own bond 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.

The Court held that commercial quantity of narcotic drugs and psychotropic substance was alleged to have been recovered from the other accused for which the punishment prescribed is more than 3 years. In such circumstances, the Metropolitan Magistrate ceases to have jurisdiction to consider the Bail Application as such the Accused are charged with offences which are punishable with imprisonment for a term of more than 3 years shall be triable only by the Hon’ble High Court or Court of Sessions.

Lakshmi Vishwakarma

Senior Legal Associates

The Indian Lawyer & Allied Services

Edited By

Sushila Ram

Chief Consultant and Editor

The Indian Lawyer & Allied Services