Holding

Section 37 of the NDPS Act imposes mandatory conditions for bail in offences punishable with imprisonment of five years or more, and a bail order that does not satisfy those conditions is invalid.

Summary

In 1997 a raid at the residence of Ram Samujh recovered five kilograms of opium. The Sessions Judge denied his bail application, but the Allahabad High Court later granted bail without addressing the mandatory conditions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Union of India appealed, contending that the High Court erred by ignoring the statutory requirement that bail may be granted only if there are reasonable grounds to believe the accused is not guilty and that he is unlikely to commit another offence while on bail. The Supreme Court held that Section 37 imposes a strict legislative mandate that must be complied with, emphasizing the grave social harm caused by drug trafficking. It observed that the High Court gave no justification for deviating from the statute and therefore set aside the bail order. The appeal was allowed, the bail order was quashed, and the accused was directed to surrender.

Issues considered

Whether Section 37 of the NDPS Act imposes mandatory conditions that must be satisfied before bail can be granted in offences punishable with imprisonment of five years or more.
Whether the Allahabad High Court erred in granting bail to the accused without satisfying the conditions of Section 37.
Whether bail can be granted in NDPS cases where the statutory conditions are not met.

Legislation cited

Subjects

bailNDPS Actnon-bailable offencesmandatory conditionsdrug traffickingSupreme Courtappeal

Judgment

A UNION OF INDIA
v.
RAM SAMUJH AND ANR.

AUGUST 30, 1999

B [K.T. THOMAS AND M.B. SHAH, JJ.]

Criminal Law :

Narcotic Drugs and Psychotropic Substances Act, 1985: Section 37.
c
Bail-Mandatory conditions-Non-compliance-Effect of-High Court
granted bail to accused without justifiable reasons-Correctness of-Held :
Legislative mandate in S.37 required to be adhered to and followed-Persons
who are dealing in narcotic drugs are instruments in causing death or in
inflicting deathblow to a number of innocent. young victims, who are
D vulnerable, and it causes deleterious effects and deadly impact on the society-
To check the menace of drug trafficking persons accused of offences under
NDPS Act should not be released on bail unless mandatory conditions
provided in S.37 are satisfied-Courtshould implement the law in the spirit
with which Parliament after due deliberation has amended-Order releasing
E accused on bail quashed
In a raid carried out at the residence of respondent-accused, 5 Kg of
opium was recovered. The Sessions Judge rejected the bail application of the
respondent. However, the High Court granted bail without justifiable reasons
ignoring the provisions of Section 37 of the Narcotic and Psychotropic
F Substances Act, 1985. Hence this appeal.

Allowing the appeal, the Court

HELD : 1.1. The legislative mandate of Section 37 of the Narcotic and
Psychotropic Substances Act, 1985 is required to be adhered to and followed.
G The persons who are dealing in narcotic drugs are instruments in causing
death or in inflicting deathblow to a number Of innocent young victims, who
are vulnerable, which causes deleterious effects and deadly impact on the
society. [79-C-D]

Durand Didier v. Chief Secretary, Union Territory o/Goa, [1990] 1
H sec 95, relied on.
76
U.0.1. v. RAM SAMUJH [SHAH, J.) 77
1.2. To check the menace of dangerous drugs flooding the market, A
_ Parliament has provided that the person accused of offences under the NDPS

- Act should not be released on bail during trial unless the mandatory conditions
provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is
not guilty of such of offence; and B
(ii) that he is not likely to commit such offence while on bail are
satisfied. {80-A-B]

2. The High Court has not given any justifiable reason for not abiding
by the aforesaid mandate while ordering the release of the respondent- C
accused on bail. The Court should implement the law in the spirit with which
the Parliament, after due deliberation, has amended. (80-B-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 866
of 1999.

From the Judgment and Order dated 20.8.98 of the Allahabad High Court
D
in Crl. M.C. No. 552of1998.

Anoop Chaudhary, (A.S. Rawat) and D.S. Mehra Adv. with him for the
Appellant.

K.B. Hina, (A.C.) for the Respondents.
E

The Judgment of the Court was delivered by

SHAH, J. Leave granted.

As respondent No. 1 has not engaged any counsel, the Registry was F
directed to appoint an advocate as amicus curiae. We have heard the learned
counsel for the parties. Only question involved in this appeal is whether the
order passed by the High Court of Judicature at Allahabad, Lucknow Bench,
granting bail to respondent No. 1 Ram Samujh Yadav requires to be set aside
on the ground that the High Court ignored the provisions of Section 37 of G
·the Narcotic Drugs and Psychotropic Substances Act, i985 (hereinafter referred
to as "NDPS Act") as well as the law laid down by this Court.

It is alleged by the prosecution that on 21 May, 1997, a raid by the
authorities of the Narcotic Department was carried out at the tubewell house
of respondent No. 1 and 5 Kg of Opium was recovered. Tlre Sessions Judge H
78 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A by the detail reasoned order dated 11 July, 1997 rejected the bail application
after hearing Special Public Prosecutor (Narcotics) and considering the material
on record.
.
The High Court· granted bail by a cryptic order dated 20 August, 1998
which is extracted below:
B
"The applicant is in jail since 22.5.1997 and trial has not concluded.

Applicant Ram Samujh is admitted to bail in case crime No. 15 of
97, under Sections 8/18 N.D.P.S. Act, P.S. Kotwali, Barabanki, district
Barabanki, on his furnishing a personal bond and two sureties, each
C in the like amount to the satisfaction of Special Judge (N.D.P.S. Act),
Barabanki and on the condition that the applicant shall report at the
Police Station on first and sixteenth of every month till the trial lasts."

The jurisdiction of the Court to grant bail is circumscribed by the
provision of Section 37 of the NDPS Act. It can be granted in case where ,
D there are reasonable grounds for believing that accuse~ is not guilty of such I
'
offence and that he is not likely to commit any offence while on bail. It is
the mandate of the legislature which is required to be followed. At this .\

juncture a reference to Section 37 of the Act is apposite. That provision I
makes the offences under the Act cognizable and non-bailable. It reads thus:

E "37. Offences to be cognizable and non-bailable:

(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973:

(a) every offence punishable.under this Act shall be cognizable;
F (b) no person accused of an offence punishable for a term of
imprisonment of five years or more under this Act shall be released
on bail or on his own bond units;

(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
G
(it) where the Public Prosecutor opposes the application, the. CQJJrt
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.
H (2) the limitations on granting of bail specified in clause (b) of sub-
u.o.r. v. RAM SAMUJH [SHAH. J.] 79
section (I) are in addition to the limitations under the Code of Criminal A
Procedure. 1973 or any other law for the time being in force on
granting bail."

The aforesaid Section is incorporated to achieve the object as mentioned
in the Statements of Objects and Reasons for introducing the Bill No. 125/
1988 thus: B
"Even. though the major offences are non-bailable by virtue of the
level of punishment, on technical grounds, drug offenders were being
released on bail. In the light of certain difficulties faced in the
enforcement ofNDPS Act, 1985 the need to amend the law to further
strengthen it has been felt." c
It is to be borne in mind that the aforesaid legislative mandate is
required to be adhered and followed. It should be borne in mind that in murder
case, accused commits murder of one or two persons, while those persons
who are dealing in narcotic drugs are instruments in causing death or in
inflicting death blow to number of innocent young victims, who are vulnerable; D
it causes deleterious effects and deadly impact on the society; they are a
hazard to the society; even if they are released temporarily, in all probability,
they would continue their nefarious activities of trafficking and/or dealing in
intoxicants clandestinely. Reason may be large stake and illegal profit involved.
This Court, dealing with the contention with regard to punishment under E
NDPS Act, has succinctly observed about the adverse effect of such activities
in Durand Didien v. Chief Secretary; Union Territory of Goa, [1990) I SCC
95 as under:

"With deep concern, we may point out that the organised activities
of the underworld and the clandestine smuggling of narcotic drugs F
and psychotropic substances into this country and illegal trafficking
in such drugs and substances have led to drug addiction among a
sizeable section of the public, particularly the adolescents and students
of both sexes and the menace has assumed serious and alarming
proportion in the recent years. Therefore, in order to effectively control
and eradicate this proliferating and booming devastating menace, G
causing deleterious effects and deadly impact on the society as a
whole, the Parliament in the wisdom has made effective provisions by
introducing this Act 81 of 1985 specifying mandatory minimum
imprisonment and fine."

To check the menace of dangerous drugs flooding the market, the H
80 SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A Parliament has provided that the person accused of offences under the NDPS

-
Act should not be released on bail during trial unless mandatory conditions
provided in Section 37, namely,

(i) there are reasonable grounds for believing that accused is not
guilty of such offence; and
B - (ii) that he is not likely to commit while on :,u;;
are satisfied. The High Court has not given any justifiable reason
for not abiding by the aforesaid mandate while ordering the
release of the respondent accused on bail. Instead of attempting
to take a holistic view of the harmful socio-economic
c consequences and health hazards which would accompany
trafficking illegally in the dangerous drugs, the Court should
implement the law in the spirit with which the Parliament, after
due deliberation, has amended.

D In the result, appeal is allowed. The impugned Order dated 20 August,
1998 passed by the High Court of Judicature at Allahabad, Lucknow Bench,
releasing respondent No. 1, Ram Samujh is quashed and set aside. Respondent
No. 1 is directed to surrender.

v.s.s. Appeal allowed.