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-Report by Bhavana Bhandari

In a recent judgment, the Supreme Court of India held that a simple and literal interpretation of the severe requirements under Section 37 of the NDPS Act 1985 would make bail difficult to grant. The court was considering a criminal appeal in the case Mohd Muslim vs State (NCT) of Delhi to adjudicate whether grant bail to an undertrial prisoner who was arrested seven years ago under the Narcotic Drugs and Psychotropic Substances Act, 1985 for alleged participation in the distribution of a prohibited drug.


The case involved the seizure of 180 kg of marijuana from a total of four co-accused individuals seven years ago, namely Nitesh Ekka, Sanjay Chauhan, Sharif Khan, and Virender Shakiyar/Sakyabar @ Deepak and afterward Mohd Muslim. When the co-accused were found in possession of the prohibited drug, the appellant, Mohd Muslim, was implicated based on a confessional statement. When his co-accused was granted bail, the Delhi high court refused him bail. Nevertheless, despite Mohd Muslim was not found in possession of ganja, the assistant attorney general of India, Vikramjit

Banerjee stated that ” he prima facie looks to be the brains behind the supply and transportation of narcotic drugs from Chhattisgarh.”


The appellant stated that because he has been imprisoned for more than seven years and the criminal the prosecution is only midway, the impugned judgment invalidated his plea for ordinary release under Sections 439 and 482 of the Criminal Procedure Code (hereafter “CrPC”) before the Delhi High. The court, even if he was not found in possession of any drugs. Yet, his co-accused were granted bail despite this.


According to the prosecution, the four accused people who were allegedly in possession of 180 kg of marijuana—Nitesh Ekka, Sanjay Chauhan, Sharif Khan, and Deepak—were apprehended by the police as a result of secret details that were provided to authorities.

As part of the inquiry, the co-accused Nitesh Ekka was transported to Chhattisgarh to be identified, and on his request, the current appellant Mohd. Muslim was put into custody from the night of October 3, 2014, to October 4, 2015.

Based on several considerations, including the gravity of the alleged offenses, the severity of the sentence, and the appellant’s claimed involvement, the district court denied the appellant’s request for bail. It was observed that he had been in constant touch with his co-accused during the commission of the crime and that key witnesses had not yet been interviewed.

Further, the challenged decision states that the present accused was in prima facie frequent touch with other co-accused, as evidenced by phone records, and that the main accused, Virender Singh @ Beerey had made payments to the appellant’s bank account repeatedly. During the trial, one of the witnesses reportedly stated that the current appellant gave him Rs. 50,000.

As there was a prima facie case against him and no justification for relying on Section 37 of the NDPS Act’s exclusions, the application for normal bail was denied, and the trial court was ordered to accelerate and conclude the matter within six months.


This observation was stated in the judgment by a bench of Justices S. Ravindra Bhat and Dipankar Datta considered that the requirement of Section 436A, which applies to offenses implies that the grant of bail based on an unreasonable delay in the trial cannot be considered to be restricted by Section 37 of the Act. The bench observed that section 37 of the Narcotic Drugs and Psychotropic Substances, 1985 positions that a court may only issue bail to an accused person if it is convinced that there are reasonable reasons to believe that he is innocent of the crime and that he is not likely to commit another crime.

The Supreme Court further cited the decision of State of Madhya Pradesh v. Kajad [(2001) 7 SCC 673, which said that a ‘liberal’ approach to Section 37 of the NDPS Act should not be applied. The bench ruled that to effectively rule out the grant of bail completely, the appellant’s request for release must be evaluated ” within the framework of the NDPS Act, specifically Section 37.”


As a response, the bench led by Justice Bhat remarked that the supreme court had maintained such stringent conditions in light of the balance between two conflicting goals, namely, the right of an accused to enjoy freedom based on the presumption of innocence and the interest of society at large. And yet, it also acknowledged that the only way a particular condition in law, like the one in Section 37 of the NDPS Act, could be taken into account within the bounds of the constitution is by relying on a prima-facie finding of the matter based on the evidence on the record. The bench ruled unequivocally that any alternative reading would result in a person accused of offenses such as those authorized under Section 37 of the NDPS Act is completely denied bail.

Therefore, since the appellant has been in detention for more than 7 years and 4 months and the the trial is moving at a snail’s pace, bail cannot be denied to an accused charged with NDPS Act offenses due to the operation of Section 37 where there has been an excessive delay in the trial.


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