Bail Under the NDPS Act & Section 479 of the BNSS: A Detailed Analysis

Bail as introduced in the criminal justice system involves letting the accused go temporarily with a view of waiting until the trial, strictly under some conditions. Section 2 (b) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 explains bail as "release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond." The mode of bail varies with each statute; however, for a serious offence like under the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985, it is quite stringent. The new code, BNSS, has recently incorporated Section 479, which has amended the bail provisions for under trial prisoners in a general case. It's quite relevant to take a report of the current article in relation to the bail provisions, provided under both the NDPS Act and Section 479 of the BNSS which pertains to under trial prisoners to see what it tells us about their purpose, their differences, and real-world effects.

Bail Under the NDPS Act, 1985

The NDPS Act is one of the most stringent legislations brought to India to effectively put an end to the menace of drug trafficking and abuse. The law treats offenses in respect of narcotic drugs and psychotropic substances in the most stringent manner possible, which gives very restricted provisions on bail.

Stringent Bail Conditions (Section 37 of the NDPS Act):

Section 37 of the NDPS Act severely prevents conceding of bail, particularly in cases involving commercial quantity of narcotic drugs. Some of the main features of bail provisions under section 37 are given below:

1.    Covered Offenses:

• It covers offences related to manufacture, possession, transport, production, import/export, sale, purchase, and trafficking of narcotic drugs and psychotropic substances.
• The law establishes a difference between small, intermediate, and commercial quantities. Commercial quantities are the most severely punished by the law.

2.    Prohibition on Bail:

Commercial quantities, bail granted only if the court is satisfied that:

• There is a reasonable basis to believe that the accused is not responsible for committing the offense.
• The opposition has opposed the bail, and their opportunity was given.
• With the defendant on bail, the likelihood of committing any crime is very slim.

The burden of proof is effectively reversed, requiring the accused to prove his innocence at the bail stage itself, thereby making bail very difficult to obtain.

Exceptions:

1.    In cases involving small quantities, bail is granted, because the charge automatically becomes less grave. However, the consideration still remains one of the potential dangers posed by the person being accused.

2.    Case Law Example: In State of Kerala v. Rajesh (2020), it has been held that bail is not granted under Section 37 unless and until both the conditions provided under Section 37 are met in the given facts. In the present case, the bail was refused as it was a commercial quantity of drug and since no evidence of innocence came at the bail stage.

3.    Impact of Stringent Bail Provisions: The bail provisions under the NDPS Act have faced criticisms in part and praise to an extent. They avoid habitual offenders and traffickers from taking undue advantage of the legal process to come out of this mess but, on the flip side, also targeted for causing prolonged detention of under trials who are falsely implicated.

Bail Under Section 479 of the BNSS, 2023

BNSS has introduced Section 479 of the release of under trial prisoners which is permitted based on the duration of detention. As not restricted to offenses under NDPS Act, it has been applied for most crimes barring those offenses for which the punishment is death or imprisonment for life. The provision is enacted to afford a remedy to the problem of prolonged under trial detentions.

Key Provisions of Section 479:

1.    General Rule for Bail:

• A Bail shall be granted to an under trial prisoner detained for a period of time amounting to or exceeding half of the maximum imprisonment prescribed for the said offence.

2.    First-Time Offenders:

• For first time offenders, detention threshold is reduced to one-third of the maximum imprisonment term. They can be released on a bond rather than bail.

3.    Exceptions:

• The provision gives protection under which the court can negate release if reasons exist for detaining them beyond the period prescribed. On refusing such release, reasons must be given and recorded in writing on submissions made by the Public Prosecutor.
• The court may refuse bail where there are several charges under prosecution or where the accused is under investigation for other crimes.

4.    Cap on Detention:

• No person should be detained for more than the maximum sentence for the offence, so that under trials are not detained indefinitely without trial.

5.    Multiple Offences:

• If the accused is involved in multiple offenses or cases, they are not allowed bail under sub-section (1) this reflects stern considerations of bail for people facing multiple legal issues.

6.    Superintendent's Role:

• The Court shall be informed by the Superintendent of Jail in respect of any under trial prisoner that any of the following events relating to him has occurred viz. having undergone half or one third of the maximum period of imprisonment, as the case may be.

Comparison with NDPS Act:

• Flexibility:  Section 479 of the BNSS gives wider scope for leniency and release of an under trial prisoner, especially if he is a first offender. The NDPS Act is comparatively sterner in nature since it concerns themselves with the offenses.
• Burden of Proof: Section 479 has a relatively lenient presumption of bail. On the other hand, the NDPS Act has allocated the burden of proving innocence to the accused at the bail stage.
• Applicability: Section 479 applies widely to a vast number of offenses, however is not applicable to the offenses carrying the sentence of death or life imprisonment, whereas NDPS Act is focused on the offense related to drugs only, with strict condition of particularly commercial quantity.

Real-World Implications and Criticism

1.    Overcrowding in Jails: The NDPS Act gave rise to extreme overcrowding in Indian prisons. Many under trials have spent years in prison in the hope of securing bail.  As per the statistical records from the National Crime Records Bureau, millions of detainees falling within the ambit of NDPS Act are being held for crime. This further deteriorates a situation that already gravely requires attention.

2.    Section 479 to Alleviates Under trial Population: It is a welcome step in the BNSS by bringing Section 479 for reducing under trial population by making it easy the procedure of liberation for those long-term detainees without trial. The actual value of this measure, however, has yet to be seen concerning judicial decision-making.

3.    Need for Judicial Reform: Critics argue that while Section 479 may solve the problem on under trial detention, much more judicial reforms are needed to deal with the root causes of delay in the criminal justice system by achieving more judges, speeding up the conduct of trials, and making legal aid accessible to all accused persons.

Conclusion

Both NDPS Act, 1985, and Section 479 of the BNSS, 2023 provides bail provisions which shows an element of balance between preserving individual liberties and protecting public safety. The mechanism introduced by Section 479 of the BNSS can prevent under trial detention of excessive lengths and counter the seriousness of conditions by NDPS Act for bail. The reciprocation between such provisions is going to define India’s viewpoint on bail, justice and the rights of its citizens as time moves forward.

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