In this article I have explained about Bail in NDPS Cases Involving Opium (Afeem) in India

India, like many other nations, grapples with drug-related offenses, particularly cases involving opium, commonly referred to as “Afeem.” The Narcotic Drugs and Psychotropic Substances (NDPS) Act is the legal framework governing such cases, outlining stringent measures to curb the production, trafficking, and consumption of illicit substances. Within this legal landscape, the grant of bail becomes a crucial and intricate aspect of the judicial process, carrying implications for both the accused and law enforcement.

Understanding Bail in NDPS Cases Involving Opium (Afeem) in India

NDPS Act: The Legal Framework

The NDPS Act of 1985 aims to combat the menace of drug abuse and trafficking by establishing stringent provisions and penalties. Opium, known for its psychoactive properties, falls under the purview of this act, and offenses related to its possession, cultivation, sale, or transportation are treated with severity under the law.

Bail in NDPS Cases: A Complex Terrain

Securing bail in NDPS cases involving opium presents a complex legal challenge due to the stringent nature of the NDPS Act. The gravity of the offense and the potential societal harm from drug trafficking often lead courts to be cautious in granting bail. Several factors influence the grant or denial of bail:

You can also read :- Do I Need a Lawyer for NDPS Case

Quantity and Severity of the Offense:

• Courts consider the quantity of opium involved and the role of the accused—whether they were merely possessing it for personal use or involved in larger-scale trafficking.
• Cases involving commercial quantities or connections to drug cartels tend to face a higher threshold for obtaining bail.

Reasonable Grounds and Judicial Discretion

The concept of “reasonable grounds” as stipulated by the NDPS Act plays a crucial role in bail considerations. This standard demands substantial probable cause for believing in the accused’s innocence. Judicial pronouncements, such as the Supreme Court’s decision in State of Kerala v. Rajesh, have elucidated this principle, emphasizing the need for clear factual bases to support the accused’s non-involvement in the offense.

Presumption of Non-Bailability:

• The NDPS Act initially presumes non-bailability for offenses involving commercial quantities of drugs. However, the law allows for discretion based on circumstances and evidence presented before the court.

Judicial Discretion:

• Courts have the authority to grant bail based on individual merits, including factors such as the accused’s criminal record, cooperation with authorities, and the likelihood of the accused fleeing or tampering with evidence.

Rigorous Bail Conditions:

• In instances where bail is granted, courts often impose stringent conditions, such as surrendering passports, regular reporting to authorities, or refraining from leaving the jurisdiction without court permission.

Recent Precedents and Challenges

Recent legal precedents in NDPS cases involving opium highlight the challenges faced by the judiciary in balancing the rights of the accused with the need to uphold the law. Landmark judgments have emphasized the importance of considering individual circumstances while also emphasizing the seriousness of drug-related offenses.

1. Gurpritam Versus State of Haryana (2023) :In the year 2023, Yashpal Singh, the accused, was arrested by the ANC (Anti-Narcotics Cell), Kurukshetra, in a case involving 20 kilograms and 800 grams of opium (Afeem). Additionally, his son Gurpritam Singh was implicated in the same case. Subsequently, Shri. Vishal Saini, an advocate, filed a bail application before the Honorable Punjab and Haryana High Court, which was granted on the 15th of November, 2023.
2. Showik Chakraborty and Others: In 2020, Showik Chakraborty, the brother of Bollywood actress Rhea Chakraborty, was arrested by the Narcotics Control Bureau (NCB) in connection with a drug-related case following an investigation into actor Sushant Singh Rajput’s death. Showik Chakraborty and other accused individuals applied for bail multiple times, citing various grounds, including lack of evidence against them. Their bail applications were initially denied, but later, some were granted bail by different courts after prolonged hearings.
3. Suraj Singh Versus State of Haryana 2023: Suraj Singh faced allegations in two poppy straw cases along with a murder charge under Section 302 of the IPC. Among these, an 85-kilogram seizure was part of one poppy straw case. The ANC team from Kurukshetra arrested him. Subsequently, on December 11, 2023, Shri. Vishal Saini, Advocate, filed his bail application, which was granted on December 18, 2023.
4. Rhea Chakraborty: Similarly, Rhea Chakraborty, an actor and girlfriend of Sushant Singh Rajput, was also arrested by the NCB in the same case. Her bail plea was initially rejected by a special NDPS court in Mumbai, but she was later granted bail by the Bombay High Court.
5. Mohammed Haris Nalapad: In a case in Bangalore, Mohammed Haris Nalapad, the son of a politician, was arrested in connection with an alleged drug case involving party drugs like MDMA (Ecstasy) and hashish oil. His bail plea was initially rejected by a special court, but later he was granted bail by the Karnataka High Court.
6. Sameer Khan: In another instance, Sameer Khan, a Bollywood celebrity hairstylist, was arrested by the NCB in a drug-related case. He was granted bail by a special NDPS court in Mumbai after spending several weeks in custody.

Types of Bail:-

1. Anticipatory Bail
2. Interim Bail
3. Regular Bail

1. Anticipatory Bail:-

Anticipatory bails are taken before the arrest of a person. It is also called a pre-arrest bail. It is mentioned under Section 438 of the Code of Criminal Procedure as ‘grant apprehending arrest’. The requirement for anticipatory bail saw a rise in the early 1990s when many false cases were filed against business people. To protect the interests of the public, the Law Commission has suggested adding a provision prohibiting arrest beforehand. As it is a matter of the personal liberty of a man, it was added to the Code.

According to Section 438 of CrPC, a person who has committed an offence anticipates his arrest, wherein he can approach the High Court or the Sessions Court for anticipatory bail. It is at the discretion of the Court whether to grant bail or reject the same. It solely depends on the circumstances and the seriousness of the offence. Anticipatory bail can be granted for a non-bailable offence. It will be valid only if the person has no direct connection or when the Court believes that the person is innocent.

2. Interim Bail:-

Interim bail is given by direct order of the Court to release an accused for a short term temporarily. The Courts noticed that interim bails are being misused in many cases and have decreased the number of interim bails issued. Interim bail is issued so the accused can cooperate with the investigation agency.

3. Regular Bail

An arrested person in police custody can apply for regular/daily bail. Bail provisions are given under Sections 437 and Section 439 of the Code of Criminal Procedure.

Cancellation of Bail:-

The Court granting bail can also withdraw the concession of bail given to a particular accused/s, either suo moto, i.e. on its own, or on the Application from the Police/ Complainant/ any other aggrieved person. However, the Courts exercise their power to cancel bail with care and circumspection.

Anticipatory Bail In NDPS Act

First, you need to find the Best Lawyer for NDPS cases. You can read this article about the best advocate’s qualities or How to Find the Best Advocate. Since the advocate plays an excellent role in bail. However, facts are different from case to case

We get Anticipatory bail in ordinary cases, in the same way, we can get anticipatory bail in NDPS Act cases. Below is the procedure explaining in easy steps how to get bail in NDPS Act cases

First of all, you need to keep in mind that as per section 37 (1) of The Narcotic Drugs and Psychotropic Substances Act, 1985 all offences in the act are cognizable. The Narcotic Drugs and Psychotropic Substances Act, of 1985 provides deterrent punishments for drug trafficking offences. Even though the significant crimes are non-bailable by the level of sentences, drug offenders can also be released on bail on technical grounds.

Obtaining bail in NDPS cases is a nuanced process that demands a thorough understanding of the legal landscape. The criteria for granting bail extend beyond the mere opposition by a public prosecutor. They encompass an assessment of the nature and quantity of drugs involved, the accused’s role and criminal history, and the potential risk of evidence tampering. These factors collectively inform the judicial approach to bail decisions, highlighting the balance courts seek between deterring drug offenses and upholding the constitutional right to personal liberty.

But in the Case of Teru Majhi and another Vs. State of West Bengal and others 2014(2) RCR (Criminal ) 886

It was held that a Special Court constituted under section 36 of the NDPS Act is competent to entertain the pre-arrest bail under section 438 CrPC

In Atik Ansari Vs. The State of NCT Delhi, 2006(4) RCR (Cri). 857 Delhi

Interim bail in the NDPS Act for the operation of the wife 2 weeks was granted. Further, it is pertinent to mention that here in this case 2.5 Kg of heroin was recovered.

Advantages of Obtaining Anticipatory Bail in NDPS Act Cases

There are several advantages to obtaining anticipatory bail in NDPS Act cases. First, it allows the applicant to remain at liberty while they prepare for their defense. This can be especially important in cases where the applicant is unable to secure regular bail due to the severity of the charges or other factors. Second, it can provide a measure of protection against arbitrary or malicious arrests. In some cases, individuals may be falsely accused of NDPS Act offenses, and anticipatory bail can help to ensure that they are not wrongly incarcerated.

Conclusion

Navigating the legal terrain concerning bail in NDPS cases involving opium requires a nuanced understanding of both the law and the specific circumstances surrounding each case. While the NDPS Act aims to deter drug-related offenses, the grant of bail is a pivotal aspect of the judicial process, ensuring fairness and upholding the principles of justice while combating the menace of drug abuse and trafficking in India.

As the legal landscape evolves and judicial interpretations continue to shape the application of laws, the quest for a balanced approach—one that considers both the severity of drug-related offenses and the rights of the accused—remains an ongoing challenge within the Indian legal system.

FAQs (Frequently Asked Questions)

1. What does NDPS stand for?

NDPS stands for the Narcotic Drugs and Psychotropic Substances Act.

2. Does opium fall under the NDPS Act in India?

Yes, opium (afeem) is regulated under the NDPS Act.

3. Is bail readily granted in NDPS cases involving opium possession or trafficking?

Bail in such cases is possible but not guaranteed, subject to various factors.

4. What factors influence the grant of bail in NDPS opium cases?

Factors include the quantity of opium involved, the accused’s criminal record, case circumstances, and the court’s discretion.

5. Can someone accused in an NDPS opium case apply for bail immediately after arrest?

In most cases, they need to apply for bail through the proper legal channels.

6. Are there specific legal procedures for seeking bail in NDPS opium cases?

Yes, it’s advisable to consult a lawyer well-versed in NDPS laws for the proper legal procedure.

7. Can bail conditions be imposed upon granting bail in NDPS opium cases?

Yes, conditions such as surrendering passports or regular reporting to the police might be imposed.

8. How long does it take to obtain bail in NDPS opium cases on average?

This varies based on case complexity, court schedules, and legal factors. You cans see suraj singh case in which accused got bail within 48 days

9. Can higher courts be approached if bail is denied in NDPS opium cases?

Yes, appeals can be made to higher courts for reconsideration of the bail plea.

10. What actions should one take if accused in an NDPS opium case and seeking bail?

Seek immediate legal representation and follow legal advice diligently.

11. What is the maximum punishment for possessing opium without authorization?

The punishment can extend to rigorous imprisonment of up to ten years and a fine.

12. Can a person be released on bail if found possessing a small quantity of opium for personal use?

Bail may be possible, but it depends on various factors and the court’s discretion.

13. Can family or friends apply for bail on behalf of an accused in an NDPS opium case?

Usually, bail applications are filed by the accused or their legal representative.

14. Is bail more challenging to obtain for trafficking compared to possession cases?

Trafficking cases might face greater scrutiny and stricter conditions for bail.

15. Can the court revoke bail granted in NDPS opium cases?

Yes, bail can be revoked if the accused violates the bail conditions.

16. Does cooperation with the investigation influence the grant of bail in NDPS opium cases?

Cooperation might be considered a positive factor by the court in some cases.

17. Are bail bonds or sureties necessary for securing bail in NDPS opium cases?

Yes, they might be required as a part of the bail conditions.

18. Is bail automatically granted after a certain period of detention in NDPS opium cases?

No, it requires a formal application and court proceedings.

19. Can bail be sought if arrested in a different state for an NDPS opium offense?

Bail applications can be filed in the state where the offense is registered.

20. Are there specific legal remedies if bail is repeatedly denied in NDPS opium cases?

Seeking review or reconsideration by higher courts is a possible legal recourse.

21. Can an accused person travel outside the country if granted bail in an NDPS opium case?

Bail conditions might prohibit international travel without court permission.

22. How does the quantity of opium seized influence the bail decision?

Larger quantities might result in stricter scrutiny and conditions for bail.But it depends upon case to case like in Gurpritam singh case accused got bail in 20 kg 800 Gram Opium and in Suraj Singh Case accused got bail in 85kg Poppy Straw Case.

23. Is legal aid available for individuals unable to afford legal representation in NDPS opium cases?

Yes, legal aid might be provided based on eligibility criteria.

24. Can an accused be denied bail solely based on the seriousness of the offense?

The seriousness of the offense is a factor, but not the sole determinant for bail.

25. What if bail is violated in NDPS opium cases?

Violating bail conditions can lead to re-arrest and additional legal consequences.

26. Is bail easier to obtain for first-time offenders in NDPS opium cases?

Past criminal record is considered, but each case is assessed individually.

27. Are there alternative options if bail is consistently denied in NDPS opium cases?

Seeking legal advice for modifying the bail application or approaching higher courts can be considered.

28. Can bail applications be rejected without a hearing in NDPS opium cases?

Generally, bail applications are heard by the court before a decision is made.

29. Can an accused person be granted bail while the trial is ongoing in NDPS opium cases?

Yes, bail can be applied for at various stages of the legal process.

30. Does the age of the accused influence the bail decision in NDPS opium cases?

Age might be one of the factors considered by the court while deciding on bail.

Sources :-

1. Anticipatory bail in NDPS Case

2. Gurpritam Versus State of Haryana (2023)

3. Showik Chakraborty vs Union Of India And Anr on 7 October, 2020

4. Suraj Singh Versus State of Haryana 2023

5. Rhea Chakraborty Versus Union of India

6. Mohammad Haris Nalapad Case

7. Sameer Khan case