How to Get Bail Under NDPS (Narcotic Drugs and Psychotropic Substance) Act

The drug trafficking is a racket where youth get trapped, sometimes its their choice to earn quick monies and at times they simply lack strength and indomitable will to overcome substance abuse which makes them helpless and follow the words of the peddler quid-pro-quo to meet their addiction demands.

A mother of a young college grad met me and quoted his son telling… “Mom.., its easy for me to quit drugs, I have done that more than a 100 times…” She met me to seek legal assistance and Bail for an offence under NDPS Act.

Punishment Under NDPS Act

Firstly, lets understand the types Punishments in India under the NDPS Act for the accused if proven guilty

• Mandatory death penalty for certain repeat crimes involving a large quantity of drugs.
• Maximum of 6 months’ rigorous imprisonment or a fine up to Rs. 10,000 or both if proven the accused are found guilty for Small Quantity
• Rigorous imprisonment from 10years’ (min.) to 20 years (max.) & a fine from Rs 1 lakh to 2 lakhs if proven the accused are found guilty for Commercial Quantity. Enhanced punishment up to 30 years for repeat offenders. Such is the case for Cultivation, Production, Manufacturing and Embezzlement too.
• Consumption of drugs and psychotropic substances is punishable too, such punishment range from 6 months to 1 year depending on the type of drug being consumed.
• Further, there are severe restrictions on granting Bail, and Pre-Trial detention up to 1 year, no suspension or remission or commutation of sentence is allowed and there is no provision of probation too. This shows how strict the NDPS act is the severity of punishments.

Note: It is irrelevant, that the drug is used for Personal Consumption, Sale or for Distribution while deciding the Punishment

Who has the Powers to Arrest

• Power of Entry, Search, Seizure and Arrest without Warrant and Authorization. Any officer superior to the rank of Constance from the Central Excise, Narcotics, Customs, Revenue Intelligence, Drug Control, Police, Para Military and Armed Force
• No female shall be searched and arrested by anyone except a female.
• The officer will be responsible to keep the drugs seized in safe custody pending the orders of the magistrate
• Sampling and Medical Test as need be should be completed and the accused to be produced within 24 hours from the arrest and First Remand from the Magistrate concerned

Quantity of the Drugs

Quantity of the drug in possession of the accused is a very vital factor to determine the Bail. All the downstream actions related to the Trial strategy carries a lot of weightages on this factor.

In case, drug recovered is less than commercial quantity, then the investigating officer shall prepare and file the challan within 60 days whereas in case of commercial quantity, the challan may be filled in 90 days.

The Quantity is classified as Small Quantity or Commercial Quantity as per the Table below, the ones that fall between these two are intermediate quantities.

Provisions of Bail under NDPS Act

Getting Bail in NDPS act is difficult, but the Best Lawyers for NDPS will strategize to pick the right grounds and arguments fetch you Bail as a first step and then follows the trial.

Procedurally the accused will be produced before the Magistrate, the lawyer prepares the Bail papers and prays for the accused to be granted Bail, if the Bail is rejected in the lower court, you shall approach the sessions court, and then the High Court, finally up to the Supreme Court one can appeal.

The arguments for Bail shall be towards convincing the court that there are “Reasonable Grounds” to believe that the accused has not committed an offence and he is not likely to commit any offence while on bail.

The Bail is granted on “Reasonable Grounds – In accordance of the Reason”, the Best Lawyers for NDPS matters should pick grounds that are substantial probable causes for believing that the accused is not guilty and one such relies on the Quantity of the Drugs seized. First time offender can also be a reasonable ground, other grounds can be offence under the influence, threat, coercion or fraudulently planting the drugs in the possession of the accused.

The Public Prosecutor has the powers under Section 37(1)(b) of the NDPS Act to oppose such application for release. But the Public Prosecutor is not the authority to decide weather the Bail has to be granted or denied.

Non adherence to section 37 of the act may call for a Cancellation of Bail. Non application of mind to the submissions made by the public prosecutor on the seriousness of allegations also is a ground for cancellation of Bail.

The Factors that a counsel shall present during the Bail Hearing (also applicable during the trail) revolves around

• Prima facie and Reasonable Grounds
• Nature and Gravity of accusations
• Severity of Punishment (less severe, higher the chances for Bail)
• Ability of the accused to flee the country or Jurisdiction
• Past record, character, behaviour, likelihood of repeat offence, influencing the witness or tampering the evidence etc…

• There is immunity from prosecution to the addict, if he or she volunteers for treatment. A Drug addict to be rehabilitated to bring him to main stream is a valid ground for seeking Bail.
• In a recent development, The Karnataka High Court has granted bail to a man accused of possessing Bhang, the court held that Bhang is not covered under the NDPS act unless it is proven beyond doubt that such Bhang is prepared from Charas or Ganja
• Age is not a criterion to be used as an argument to grant Bail, in one such case, Gujarat High Court denied bail for a Sr. Citizen who was arrested for holding more than small quantity of Poppy Straw
• Powers to grant Regular Bail under Section 439 of Cr.P.C. is subject to conditions laid down in the Section 37 of the NDPS Act, the counsel for the accused should ensure to incorporate them before filing the Bail Papers
• In some cases, there are more than one accused. In that case the learned counsel also has the responsibility to draw the attention of the court to the fact about the role of the co-accused elaborately while praying for Bail.
• The default bail to an accused charged under NDPS Act cannot be denied on the pretext of investigation not completed within stipulated timeframe.
• Supreme Court has clarified that drugs used for Sexual Enhancement are not covered under the NDPS act and Bail should be granted in such case
• Absence of recovery of Contraband from the possession of accused is not a ground to be cited while filing the grounds or arguments for bail.
• Not filing the charge sheet within the prescribed time period under section 167 Cr.P.C the accused can be eligible for Default Bail. Also one should keep in mind that 167(2) of Cr.P.C cannot be equated with discretion of court under section 437, 438 or 439 of Cr.P.C.

Note: Getting a Bail, is only the first step, such bail often comes with a Bail Bond and Surety.

Bail Bond: The accused gets released after signing a Bail Bond. This is a document affirming that a sum of money is to be paid to allow the defendant to remain free pending the trial.

Surety: A surety is a person who promises to oversee the defendant/s while they are out on bail. The surety also promises a sum of money to the court if the defendant doesn’t follow one or more of the bail conditions or does not show up to court when required. Parents, Near Blood Relatives and Siblings cannot be considered as Sureties.

In my next blog I will draw a detailed step by step procedure and share a few potential strategies that can benefit during the Trial and help the accused to prove his innocence while he pleads Non-Guilty.

At times, innocent people get arrested and are implicated, they remain in jail for very long period of time without their fault, this violates the fundamental right of life and personal liberty enshrined in the Article 21 of the Constitution. Section 37 of the NDPS Act is a double-edged sword, while it brings in fear in people who commit the offence cannot be granted bail., this provision becomes excessively harsh and severe as innocent people get jugged.

Feel free to write to us at mail@lawyersonia.com or call +91 9845944896 if you wish to consult or discuss your matter. “Sonia and Partners” is a Boutique law firm led by Adv. Sonia Rajesh supported by a team of qualified and among the Best Lawyers in Bangalore practicing in the area of Criminal defence serving Citizens of India, Overseas Indians, NRIs and Global International Clients.