The Bombay High Court on Wednesday granted bail to actor Rhea Chakraborty who was arrested by the Narcotics Control Bureau (NCB) in connection with a drugs case linked to the death of Sushant Singh Rajput. But the court did not accept the argument put forward by Chakraborty’s lawyer Satish Maneshinde that the offences involving small quantities of contraband are bailable under the NDPS Act.
In a lengthy judgement, Justice Sarang V Kotwal delved deeper into the issue and highlighted two important judgements of the Supreme Court.
“This issue is important and, therefore, I am examining this issue in detail. In support of his contention that the offences involving small quantities are bailable, Mr Maneshinde relied on a judgment of a single judge of this court in the case of Stefan Mueller vs State of Maharashtra. In this case, it was held that the offences involving small quantities of contraband were bailable offences,” Justice Kotwal observed. “This judgment in the case of Stefan Mueller was relied on by a Division Bench of High Court of Delhi in the case of Minnie Khadim Ali Kuhn Vs. State NCT of Delhi and others. The learned Single Judge Bench of this Court in Stefan Mueller (supra) has observed that the heading or the marginal note of Section 37 reads as “Offences to be cognizable and nonbailable. The language of Section 37 itself mentions that every offence punishable under this Act shall be cognizable, but, there is no such similar sentence mentioning that every offence punishable under NDPS Act shall be non-bailable,” the Judge further said.
Here is the observation made by Justice Kotwal in deciding Chakraborty’s bail (from the court order):
“As per requirements of this Section, the Court has to give opportunity to the Public Prosecutor to oppose the application for such relief. Such opportunity is given in the present case as I have heard learned ASG extensively. He has opposed this application. The second requirement is that, the Court should be satisfied about the two conditions. There should be reasonable grounds for believing that the Applicant is not guilty of such offence and the Applicant is not likely to commit any offence while on bail. Therefore, the Court will have to consider whether these two conditions are satisfied. However, these requirements are applicable only where the rigours of Section 37 mentioned in Clause (b) of Sub-Section (1) of Section 37 are applicable in the case. This view is consistently taken by the Hon’ble Supreme Court (Union of India Vs. Rattan Mallik alias Habul).”
Based on these guidelines and observations, Justice Kotwal decided to take the present application and explained that the following questions need to decided in this application.
I. Whether the offences alleged against the Applicant are bailable. This question needs to be decided because the Applicant is claiming her release on bail as a matter of right.
II. If the offences are non-bailable, then, as to whether rigours mentioned in Section 37(1)(b) of NDPS Act are applicable.
III. If such rigours are not applicable and if the offences are non-bailable then whether the Court should exercise its discretion to grant or refuse bail.
The applicant has vehemently contended that the allegations, at the highest, show that the offence is a bailable offence and the Applicant could not have been detained in custody since the Applicant was ready and willing to furnish bail.
The learned Judge has observed that since the Legislature has not declared specifically under Section 37 that all the offences under the Act shall be non-bailable, the provisions of CrPC are required to be looked into to find out whether the offences under NDPS Act are bailable or not.
The learned Single Judge thereafter referred to Part-II of the Schedule to the Code of Criminal Procedure, 1973 (for short, ‘CrPC’), which gives classification of offences against other laws declaring them to be bailable or non-bailable. This classification under Part II of the Schedule to CrPC mentions that the offences in other laws are bailable if they are punishable with imprisonment for less than three years or with fine only. Therefore, according to the learned Judge, since the offences involving small quantity of the contraband were punishable for sentences less than three years, these offences would be bailable. In the same judgment, it was further held that in bailable offences, even conditions cannot be imposed on the accused in view of provisions of Section 436 of CrPC.
The judge then went on the describe the amendments brought in to the sections of NDPS Act in 1985 and 2001. “The situation has not changed since 1999 when these observations were made by the Hon’ble Supreme Court. In fact, the situation has become worse. Therefore, these observations apply to today’s scenario with more force,” the judge said.
Further examining the provisions of Section 27A, Justice Kotwal said in his observation, “The allegations and material against the present applicant are that on some occasions she had used her own money in procuring drugs. She facilitated procuring of drugs through her brother. For that purpose employees of Sushant Singh Rajput were also used. As discussed earlier, her acts would not fall under Section 27A of the NDPS Act.”