Delhi HC: Bail under Section 37 of NDPS Act not Applicable when Drug is ‘Controlled Substance’

Mitali Palnitkar

Published On: February 07, 2022 at 15:25 IST

The Delhi High Court gave a clarification on the liability of people accused of Offences involving ‘Controlled Substances’ and the foreigner’s right to Bail. This was with respect to a Case involving a foreign national Arrested under Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS).

The Petitioner was the source person for Pseudoephedrine drug for a business chain operating in Punjab, Haryana and Delhi. Justice Bhatnagar held that the bar of Section 37 was not applicable as the drug was a ‘Controlled substance’.

The Court observed Pseudoephedrine to be a controlled substance while citing the Notification of Ministry of Finance Department of Revenue dated December 28, 1999. Section 2(vii)(d) of the NDPS Act defines a ‘Controlled substance’.

Under Section 9A of the Act, the Centre has the power to regulate or prohibit the “Production, manufacture, supply and distribution thereof and trade and commerce” of the controlled substances. Under Section 25A, the maximum punishment for Offences involving controlled substances is 10 years and a fine of Rs 1 lakh.

The people accused of Offences under Section 19, 24 and 27 are barred under Section 37 of the Act but the bar is applicable only when the Offences involve Narcotic drugs or Psychotropic substances.

The Petitioner, who is a foreign national, claimed his Right to Life and Personal Liberty under Article 21 of the Constitution in context of Bail by citing the Supreme Court’s decision in Gudikanth Narasimhulu and Others v Public Prosecutor (1978) and Sartori Livio v State (2005).

The Court examined the Petitioner’s Bail Case and noted that the quantity of drug found was 3.5 kg of Pseudoephedrine and 15 g of Cocaine. It wasmheld that the quantity did not qualify as ‘Commercial quantity’ under Section 37 of the Act.

The Court referred to Delhi High Court Precedents that had granted Bail to people with 100 kg or more of controlled substances. It relied upon Niranjan Jayantilal Shah v Directorate of Revenue Intelligence (2013) and Manoj Kumar v Directorate of Revenue Intelligence (2015).

The Petitioner was granted Bail by the Court. The Court directed him to furnish a personal bond of Rs 1,00,000 with two solvent sureties each of the like amount subject to the satisfaction of the Trial Court. The Court also directed him to fulfill other conditions and disposed the Application.

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