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NDPS Act – Negation of bail is the rule, and its grant is an exception under Section 37 of the

State Of Kerala Etc.  V.  Rajesh Etc., Criminal Appeal No(S). 154­157 Of 2020 (Arising Out Of Slp(Crl.) No(S). 7309­7312 Of 2019) – January 24, 2020.

The accused were in joint possession of hashish oil and currency notes. They were arrested by the Circle Inspector of Excise for offences punishable u/s 20(b)(ii)(c) and Section 29 of the NDPS Act. After investigation charge sheet was filed. The accused after that filed an application for post-arrest bail. The ASJ noted S.37(1)(b)(i) & (ii) of NDPS Act and observed that the accused committed offence punishable u/s 20(b)(ii)(c) & 29 of the act and rejected the application for post-arrest bail. Appeal was filed before the HC which granted the bail application without even noticing S.37 of the act. After this a miscellaneous application was filed by the appellant u/s 482 CrPC for recalling the above order. The court held that even if it was erroneous order and did not involve the application of mind, it was not open for the court to reconsider the facts of S.482 CrPC.

The issue raised before the Court is Whether the High Court of Kerala has committed error in granting bail under section 37 of NDPS Act?

The counsel for the appellant argued that the HC has committed error in exercising discretion in favour of the accused. Also it was laid down that the court must be satisfied that there are reasonable grounds for the accused to be not guilty of offence. In matters of granting bail liberal approach should not be given. Satpal Singh Vs. State of Punjab was referred supporting this argument. Learned senior counsel further submits that negation of bail is the rule, and its grant is an exception under Section 37(1)(b)(ii) of the NDPS Act.

The counsel for the respondent argued supporting the order passed by the HC. Also the accused were falsely implicated by the batchmates of the excise official. HC was aware of the fact that the respondent initiated prosecution under Prevention of Corruption Act. Also there are reasonable grounds to believe that accused is not guilty of the said offence and also not likely to commit any offence while on bail. While considering the application for bail the court laid down broader parameters to be followed as laid down under Union of India Vs. Ram Samujh and Ors.

The court observed that the operative part of s.37 provides a twin condition to be fulfilled. The first being the prosecution should be given the opportunity to oppose the application and the second being that the court must be satisfied that there are reasonable grounds that he is not guilty of the offence. The expression “reasonable ground” means something more than prima facie grounds. The HC have overlooked the object of s.37. In the application filed before the HC by appellant u/s 482 CrPC, the Judge has accepted the error committed in granting bail to the accused respondents.

Thus the court in this case allowed the appeal and set aside the bail order passed by the HC.




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