Why bail proceedings for offences under NDPS Act are complex and open to abuse

CategoryPolity

Last Updated30/10/2021

Rcently, Aryan Khan finally got bail in a case where no drugs were recovered from him, and where he was not even charged with consumption.
The whole argument was that the intent to deal and consume through “conscious possession” of drugs could be attributed to him because the people around him had banned substances in their possession, and that this was to be treated as cumulative intent and not individual mens rea (intent to commit a crime).

NDPS Act prevents the production, possession, sale, purchase, transport, storage, and/or consumption of any narcotic drug or psychotropic substance.
The act came into force in 1985 and was amended three times.

Narcotic drugs: coca leaf, cannabis (hemp), opium, and poppy straw.
Psychotropic substances: any natural or synthetic material or any salt or preparation protected by the Psychotropic Substances Convention of 1971.
The penalties under the NDPS Act are severe.
Punishments will include jail terms ranging from 1 to 20 years and a fine.
Abetment, criminal conspiracy and attempts to commit an offence will attract the same punishment as the offence itself.
Just preparation to commit an offence attracts half the penalty.
Repeat offences attract one and a half times the penalty and in some cases even the death penalty.
Property acquired from drug-related offences can be seized, frozen and forfeited.
Offences under the NDPS Act are non-bailable.
Convicts cannot request relief by termination, remission, and commutation of sentences passed.

In the 1970s, the Supreme Court held that bail was the rule and jail the exception, while implementing the right to life and liberty guaranteed by Article 21 of the Constitution.
The 439 of the Code of Criminal Procedure (CrPC) allow bail to the accused. But the rules are stricter in the case of drugs.
Section 37 of the NDPS Act deals with granting bail to an accused arrested in a drugs case. Understand it in simple language, then it is the responsibility of the accused to prove his innocence.
But if the police or the people of Narcotics Control Bureau tell the court that granting bail can hinder the investigation, then release is difficult.

The NCB was constituted in 1986 under the NDPS Act.
It is the nodal agency that is responsible for drug law enforcement and also in matters relating to drug abuse.
It falls under the Ministry of Home Affairs.