Generally, it is difficult to get bail in NDPS cases as Section 37 of the NDPS Act restricts the court’s powers to grant bail to an accused in NDPS cases.
Section 37 states that a court cannot grant bail without first hearing the public prosecutor and that if the prosecutor opposes bail, the accused should satisfy the following twin conditions:
(i) reasonable grounds for believing that the accused is not guilty and;
(ii) reasonable grounds to believe that the accused would not commit an offence or is not likely to commit an offence if granted bail.
Nevertheless, Justice Vidyarthi pointed out that there is a proviso to Section 36A (3) of the NDPS Act, which saves the special powers of the High Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) when it comes to bail.
The proviso stated that nothing “contained in this Section” shall affect the High Court’s special powers regarding bail under Section 439, CrPC.
However, the judge found that this proviso appeared to be out of place in Section 36A since Section 36A does not deal with bail. Rather, Section 36A only confers special courts the jurisdiction to deal with NDPS cases.
The Court concluded that this proviso was added to Section 36A by mistake and that the lawmakers had meant to incorporate the said proviso in Section 37 of the NDPS Act, which provides for restrictions on the grant of bail.
“It appears that the provision contained in Section 36-A (3) of NDPS Act saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 37 of the Act, but it has erroneously been placed in the Section preceding Section 37 … Undoubtedly, if the makers of the Act had themselves come across this jumbling of the provisions in Sections 36-A and 37 due to a copy-paste error, they have surely have straightened it out by reading Section 36-A(3) and Section 37 in conjunction with each other,” the Court said.
Source: Barandbench
