Times of India
05 July 2010
By Shibu Thomas
Mumbai, India

In a landmark judgment, the Bombay HC has held that offences under the stringent antinarcotics law which are punishable with a jail term of less than three years – are ‘‘bailable‘‘. This means a person booked for possessing a small quantity of drugs for personal consumption can be released on bail by the police on arrest.

Hearing a petition filed by a German youth, Steffan Muller (26), who was charged following a "rave party" in Pune on 2007, Justice J H Bhatia ruled that such accused should be informed by the police or magistrate (if the accused was brought before a court) that he could avail of bail.

Muller, originally from Anterpau, Germany, and currently a resident of Koregaon Park, was arrested by Pune police on March 4, 2007, following a raid on an alleged "rave party" attended by 300 to 400 youngsters. Muller was allegedly found in possession of a small quantity of charas and ganja.

The HC quashed the order of the trial court which asked Muller to deposit his passport and seek permission of the court if he wanted to travel abroad pending trial in the case. Justice Bhatia said since the offence that Muller was charged was ‘‘bailable‘‘, such conditions could not have been imposed.

The court rejected the contention of the prosecution that all offences under the Narcotic Drugs and Psychotropic Substances Act were non-bailable. The NDPS is considered by many to be draconian law with stringent provisions for bail; a court can release an accused on bail only if it is convinced of his innocence. The police has relied on Section 37 of the Act amended in 2001 to make their case that all offences under NDPS are ‘‘cognizable and non-bailable‘‘.

The judge, however, pointed to the actual wording of the law and remarked that though all offences under the antinarcotics law were cognizable, only offences that related to possession and trafficking of commercial quantity of drugs (punishable with a minimum jail term of 10 years) were non-bailable.