The Kerala High Court recently exercised its inherent power to grant bail to a person accused under the Narcotic Drugs and Psychotropic Substances Act (NDPS), despite the stringent bail restrictions imposed by Section 37 of the Act. The court found that the arrested person had not been brought before a magistrate within the constitutionally mandated 24-hour period, which vitiated the arrest. This violation of Article 22(2) of the Constitution, the court held, required it to set aside the remand order and release the accused.
In the case before the court, the second accused was arrested for allegedly possessing a large quantity of MDMA. Although he was taken into custody, he was presented before the magistrate well beyond the 24-hour window required by Article 22(2). The High Court observed this breach to be “peremptory and sacrosanct” and noted that this delayed production had deprived the accused of his constitutional protection. Following his first bail application, the Sessions Court acknowledged that the arrest was illegal, but instead of granting bail, it ordered his release from jail without properly quashing the remand. Immediately after his release, the prosecution re-arrested him while he was still within prison premises. The High Court held that this re-arrest was not permissible, particularly since the initial arrest was tainted by the unconstitutional delay.
While the prosecution argued that bail should be denied because the accused failed to meet the twin conditions mandated under Section 37 of the NDPS Act—that there be reasonable grounds to believe the accused is not guilty and that he will not commit an offence while on bail—the High Court weighed those arguments against the constitutional violation. The court noted that Section 37 aims to restrict bail in cases involving serious narcotics offences, especially commercial quantities, but it does not override fundamental constitutional guarantees. In this instance, the court determined that the arrest’s invalidity, due to non-compliance with Article 22(2), justified granting bail under its inherent powers.
Invoking its inherent jurisdiction, the court set aside the remand order and ordered that the accused be released on bail, subject to certain conditions. The court prescribed conditions to ensure that the accused cooperates with the investigation, does not tamper with evidence, and does not commit similar offences during the bail period.
This decision underscores that even under the NDPS Act, where statutory provisions impose strict constraints on bail, constitutional rights hold paramount importance. The High Court made clear that procedural safeguards enshrined in the Constitution—such as the requirement to promptly produce an arrested person before a magistrate—cannot be disregarded. When those safeguards are breached, courts may override even rigorous statutory provisions to uphold personal liberty.
The judgment thus affirms a crucial balance: while the NDPS Act is designed to combat serious drug-related crimes, it does not grant carte blanche to law enforcement to flout constitutional protections. Courts remain duty-bound to ensure that arrests and detentions comply with fundamental rights, even while taking into account public interest in combating drug trafficking.
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