Bar on bail in drug cases not valid if search provisions violated: Punjab and Haryana High Court

Saurabh Malik

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Chandigarh, September 9

In a significant judgment liable to change the way drug cases are adjudicated, the Punjab and Haryana High Court has ruled that the bar on bail in cases involving commercial quantity of narcotics will not apply where search provisions have prima facie been violated.

Section 37 provision won’t apply here

Since there is a prima facie violation of provisions of Section 50 of the NDPS Act, the bar contained under Section 37 of the Act will not apply in the present case, especially in view of the fact that the petitioner is stated to be not involved in any other case. Justice Jasgurpreet Singh Puri

The ruling by Justice Jasgurpreet Singh Puri of the High Court came on second regular bail petition filed by an accused in a case registered on September 11, 2021, under the provisions of the Narcotics Drugs and Psychotropic Substances Act at Sadar Dhuri police station in Sangrur district.

Taking up the matter, Justice Puri asserted a perusal of consent memo shown to the court, prima facie, made it clear that there was a violation of Section 50 of the Act related to search. The provision is aimed at protecting an accused from false implication. The police are required to properly inform the accused of his right of getting searched in the presence of a magistrate or a gazetted officer.

Justice Puri asserted it was settled law that Section 50 was mandatory in nature. The purpose was to provide a safeguard to the accused that has an option to get searched in the presence of either a gazetted officer or a magistrate. But the only thing a police officer asked was whether he was ready to part with Tramadol tablets he was having, instead of giving an offer to him to get searched.

Allowing the bail plea, Justice Puri added: “This court is of the view that since there is a prima facie violation of provisions of Section 50, the bar contained under Section 37 of the NDPS Act will not apply in the present case, especially in view of the fact that the petitioner is stated to be not involved in any other case. It is also not the case of the state that in case the petitioner is released on bail, he may repeat the offence or may abscond from justice. Therefore, the twin conditions contained under Section 37 of the NDPS Act for making a departure contained therein remain satisfied.”

Section 37 makes it clear that the severity or strictness in granting bail was applicable to offences involving commercial quantity. It indicates that no person accused of an offence punishable under this law “shall be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose the application for such release and where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”.