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

After almost 26 days, 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).

Khan had been intercepted by the Narcotics Control Bureau (NCB) when he was about to board the Cordelia cruise ship where he was invited as a guest. As per the arrest memo, no banned substances were found on him and no medical tests were conducted to ascertain whether he had consumed any. Despite this, he was detained in custody for charges including consumption of drugs, attempt to commit an offence under the NDPS Act, and criminal conspiracy.

Through this case, a spotlight has been shone on the interpretation of statutes regarding bail under the NDPS Act. Moreover, the innocent-until-proven-guilty principle is reversed when it comes to the accused under this Act, which is why the law is draconian, to say the least. The scope for abuse is codified and, hence, time and again, we see the zealous interpretation of the clauses, which leads to many suffering behind bars for years.

The granting of bail for offences under the NDPS Act is not only subject to the limitations contained under Section 439 of the CrPC on the special powers of a high court or court of the session regarding bail, but is also subject to the limitation placed by Section 37 of the Act which commences with the notwithstanding clause. The starting tenor of the section itself is in the negative form, prescribing enlargement of bail to any person accused of an offence under the Act, only if two conditions are satisfied. Firstly, that there are reasonable grounds for believing that the accused is not guilty of such an offence; and secondly that he is not likely to commit any offence while on bail.

Stroud’s Judicial Dictionary states that it would be unreasonable to expect an exact definition of the word “reasonable”. The word “reasonable” in any context of law would mean reasonable in regard to those circumstances in which the person, called on to act reasonably, knows or ought to know. Reason varies in its conclusions according to the line of thought of the individual, and the times and circumstances.

The expression used in Section 37(1)(b) (ii) does not define the “reasonable grounds” and this is the ground for judicial interpretation. The expression can be construed as pointing to substantial probable causes for believing that the accused is not guilty of the offence charged. In the present case, Khan had none of the banned substances in his possession and his friend Arbaaz Merchant had a few grams, found in his shoe, which he confessed (not admissible) to having kept for personal consumption. Due to the small quantity in possession, the whole case has been built on the basis of intent to commit a crime in the future (dealing in banned substances) and the interpretation of conscious possession, which is where the admissibility of evidence, and how the courts are interpreting the clauses for the same, is being considered.

With the lack of a proper data protection bill, using WhatsApp chats and notes on mobile phones to establish criminal intent is a minefield for lawyers and judges alike. Although the conditions for bail under NDPS have different parameters and are more stringent, the ambiguity in interpretation as well as the aspect of solely relying on electronic communication, makes it more difficult. The case of Khan is further twisted as the prosecution has completely done away with medical tests since they were aware that he had not consumed anything; the learned ASG has put the same on record while opposing bail. With no consumption and no possession, the intent is being established through out-of-context communication, and a bad precedent is being added to the pool of difficult-to-figure bail conditions as per the NDPS act in the first place.

There are no set rules or guidelines, and with the burden of proof being on the accused, the whole process is complicated for the court. It has been laid down through various case laws that while considering the application for bail with reference to Section 37 of the Act, the court is not called upon to adjudicate the guilt. It is for a limited purpose, essentially confined to the question of releasing the accused on bail, but with the kind of evidence being put forth and the way this is being done in cases involving celebrities, the situation is worsening.

The current Chief Justice of India, while speaking at the Independence Day celebrations this year, had rued “the sorry state of affairs” in lawmaking and the ambiguity in laws. He had stated, “We don’t know for what purpose they are made. They are causing a lot of litigation and inconvenience to the people, courts…” That somebody like Aryan Khan had to remain under detention while having nothing on him, offers greater weight to this view, which must be addressed.

Bhushan is an advocate practising in Delhi NCR. Shiv is a lawyer and social worker