Much Ado About ‘Heading’? Bailable Offences under the NDPS Act

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However, controversy arises due to Section 37 of the NDPS Act, titled “Offences to be cognizable and non-bailable.” The section declares every offence under the NDPS Act to be cognizable and places additional conditions for granting bail for certain offences, in addition to those in the CrPC. Two benches of the High Court have taken divergent views on the interpretation of this provision. In Stefan Mueller v. State of Maharashtra [“Stefan Mueller”], the court held that certain offences under the NDPS Act were bailable. Conversely, in Rhea Chakraborty v. Union of India [“Rhea Chakraborty”], the court disagreed with the earlier findings in Stefan Mueller, ruling that all offences under the Act are non-bailable.

The Aurangabad Bench, in the present case, refused to follow Stefan Mueller and denied bail on the grounds laid down in Rhea Chakraborty. These conflicting viewpoints have already been referred to a larger bench of the High Court for determination. Explaining the two contradictory positions seriatim, I argue in this piece that the omission in Section 37 is indicative of legislative intent and that a contrary interpretation would amount to judicial overreach.

The Conflict

In Stefan Mueller, the High Court noted that Section 37(1)(a) declares all offences under the Act to be cognizable. Crucially, the section does not state that all offences under the Act would be non-bailable, contrary to what its heading might suggest. The High Court further opined that the heading has only limited influence on the construction of a statutory provision. In the absence of a demonstrative legislative declaration to the contrary, the High Court ruled that the Schedule to the CrPC would dictate the bailable nature of the offence. Resultantly, the bail provisions of the CrPC alone would influence a Court’s ruling.

The primary disagreement in Rhea Chakraborty stemmed from Stefan Mueller’s perceived failure to consider the judgement of the Supreme Court in State of Punjab v. Baldev Singh [“Baldev Singh”]. In paragraph 4 of Baldev Singh, the Supreme Court states that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.” While the High Court in Rhea Chakraborty acknowledged this statement as obiter dictum, it nevertheless considered itself bound by it. Another prong for rejection of the bail plea was the non-obstante clause in Section 37 introduced vide the 1988 Amendment. The High Court found that this gave the NDPS Act a complete overriding effect over the CrPC, and that any classification of offences thereunder would be governed by the NDPS Act alone.
It is in this context that the reference in Karishma Prakash v. Union of India arose. The High Court disagreed with the reliance on the obiter in Baldev Singh as binding and delved into the legislative history of the Act. Finding that if the legislature intended for every offence under the NDPS Act it could have brought an Amendment to that effect, the High Court agreed with the ruling in Stefan Mueller. Finally, in the interest of judicial decorum, the divergent views were referred to a larger bench of the High Court.

Understanding the Legislative Intent

Much of the discussion around the nature of offences – and the impact of Section 37 – revolves around the 1988 and 2001 Amendments to the NDPS Act. A brief discussion of these is therefore pertinent to understand the legislative intent. The unamended text of the section, as introduced in 1985, merely stated that every offence punishable under the Act would be cognizable, a point reflected in the section’s heading.

The 1988 Amendment introduced to the section the contentious ‘twin conditions’ for bail and modified the heading to include the term “non-bailable”. Notably, this change was not reflected in the text of the section itself. The Statement of Objects and Reasons for the Amendment claimed that although the major offences under the NDPS Act were non-bailable, certain offenders were able to procure bail due to technicalities.

The 2001 Amendment narrowed the scope of application of Section 37(1)(b), the twin conditions, to only a few specified offences under the NDPS Act. It also introduced a sentencing structure based on the quantity of drugs involved in an offence. The Statement of Objects and Reasons for this Amendment indicated that the uniform sentencing structure needed to be overhauled to facilitate the rehabilitation of addicts while maintaining deterrence for illicit traffickers. Rationalising the sentence structure under the NDPS Act would allow for addicts to be granted bail without having to comply with the strict conditions of the Act.

It is evident from the preceding discussion that the legislature recognises two categories of offenders under the Act. First, providers who participate in illicit drug trafficking and often deal in ‘commercial’ quantities of drugs. Second, consumers who may be addicted to certain substances and generally deal in ‘small’ quantities. Despite the 1988 Amendment changing the heading of Section 37, it introduced the stringent bail conditions only for offences punishable with imprisonment of five years or more.

This assertion is only further buttressed by the 2001 Amendment, which rationalised the sentencing structure and laid out this distinction in no uncertain terms. The NDPS Act envisions two categories of offenders and, therefore, lays down two broad categories of offences. Therefore, absent any indication to the contrary, it must be inferred that the Act purposefully establishes both bailable and non-bailable offences in accordance with this distinction.

Constructing Section 37

The High Court in Rhea Chakraborty relied on the non-obstante clause in Section 37 to assert that the NDPS Act would have an overriding effect on the CrPC for the classification of offences. Per this, subsequent to the 1988 Amendment, bail provisions of the CrPC would only apply to offences under the Act when there was no conflict between the two. A non-obstante clause permits for the enforcement of what follows the clause, unimpeded by the provision it seeks to override.

Accordingly, it would be correct to say that offences under the NDPS Act would be cognizable regardless of what the CrPC states. However, the High Court seemingly applied the non-obstante clause to the heading of the section since nothing in the text of the provision would allow for such an interpretation. The heading of the section, at best, precedes the text of the provision and, at worst, is altogether external to it. Such an interpretation of the non-obstante clause is therefore unsound.

There is broad agreement on the weightage accorded to headings as an internal aid to construction. The Supreme Court has stated that headings of a section cannot control the plain meaning of the words in a provision, nor can they be referred to for construing clear and unambiguous provisions. Their utility is limited to instances of ambiguity or doubt. In Section 37, the legislature has declared all offences under the NDPS Act to be cognizable, but the absence of a similar declaration regarding the non-bailable nature of offences does not create ambiguity.
Considerable emphasis was placed in Rhea Chakraborty on the growing problem of drug abuse in India. Averments from the Statement of Objects and Reasons of the Act and its Amendments were reproduced to justify the declaration of all offences under the Act to be non-bailable, arguing that Courts had to adopt a strict stance on offences under the NDPS Act, to prevent the exploitation of perceived legal lacunae. Even so, regardless of the potential for abuse of the legal process, legislative casus omissus cannot be supplied by the judicial interpretative process.

Conclusion

Under a critical lens, regardless of obiter dicta to the contrary, it becomes apparent that the substance of the section does not reflect what the heading might suggest. Within the scheme of the NDPS Act, all offences are cognizable; however, only a subset of these is non-bailable. Declaring all offences to be non-bailable would create a heightened onus on drug users, a class of offenders towards which the legislature has adopted a reformative approach. Such an interpretation imposes conditions for bail not envisioned under the NDPS Act and, in essence, constitutes legislating from the Bench.

Speaking in the context of anticipatory bail, the Supreme Court observed that courts should refrain from imposing bail conditions not mandated by the legislature. If an offence is declared bailable, the grant of bail becomes a matter of right. The issue of bail is one that strikes at the heart of the promise of non-deprivation of life and personal liberty enshrined in Article 21 of the Indian Constitution. In deciding the reference placed before the larger bench, it falls upon the HC to maintain the legislative intent behind the provision and uphold constitutional values.



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