Interpreting what it called the correct legal position of Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act the section states that offences are cognisable and non-bailable the Delhi High Court has ruled that anyone found with mild quantity of drugs or charged with an offence for which the punishment is less than three years in jail must be released on bail by police without waiting for a court order. The police have all along maintained that anyone arrested for an offence under the NDPS Act could not be freed on bail by them. But the High Court has now directed the police commissioner to instruct all officers to ensure nobody is unreasonably jailed or made to wait for a nod from the court in such cases. Deciding a petition by the mother of a St Stephens College student who was arrested on the charge of possessing 100 gm of charas and was denied bail by police which said it was the job of the court,a division bench headed by Justice S Ravindra Bhat has ruled that if the charge under the NDPS Act is punishable with a jail term less than three years,an accused must be freed on bail by police. This court hereby directs the police commissioner to issue necessary guidelines and instructions to all police officials bringing to their notice the effect of this judgment,so that they are suitably instructed in future cases,wherever offences are bailable,to release the suspects wherever bail is offered in terms of the CrPC provisions, the bench said. In the present case,an FIR was registered against the petitioners son and another student of the same college at Maurice Nagar police station on March 1 for being in possession of 100 gm of charas. The mother offered bail for her son at the police station but the police refused to take on record the bail application or a representation drafted by advocate Nitya Ramakrishnan. They also called the DCP who replied that the police could not release on bail any person arrested under any charge of the NDPS Act. The next day,the mother moved the High Court and the court asked the area magistrate to decide her sons bail application as per law. Her son was released on bail by the magistrate the same day. It was subsequently argued in the High Court that despite her sons bail,the proceedings must continue since his release did not take away the illegality of the detention. The court should declare that whenever possession of a small quantity of charas under Sections 20 and 21 of the NDPS Act is alleged,the offence is bailable,and the suspect is entitled to be enlarged on bail by the police as in the case of any other petty offence, Nitya Ramakrishnan argued. Opposing this,the prosecutor said that the scheme of the NDPS Act was such that irrespective of the quantity of drugs,every offence was non-bailable and only a court could release an accused on bail. Justice Bhat,however,disagreed with the prosecutor and said the heading of Section 37 of NDPS Act,that all offences under the Act are non-bailable,did not bind the court from interpreting the correct legal position. In the area of bail,courts should not impose restrictions which are not mandated by the legislature as it adversely implicates the liberty of the citizen. Thus,if the offences are punishable,like in the present case of possession of small quantities of drug,the suspect or accused is entitled to bail. The petitioners son was entitled to be released,without his applying for bail in court,once he showed willingness to give bail in terms of the CrPC, the court said.
