Whether all offences under the NDPS Act are non-bailable - Single Judge of Bombay HC refers the issue to larger bench

Case: Karishma Prakash v. Union of India and Ors

Justice Bharati Dangre of the Bombay High Court has referred to a larger bench the matter of whether all offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) are non-bailable. Regardless of the punishment prescribed and even though many offences do not even mandate imprisonment as a punishment?

The single bench was hearing an anticipatory bail application of Deepika Padukone's former manager Karishma Prakash. The applicant apprehended her arrest in the drugs case related to Sushant Singh Rajput's death. The HC rejected the application but raised the above question in wake of the arguments made by Senior Advocate Abad Ponda, who appeared for Prakash.

Adv Ponda contended that in the wake of conflicting views of single-judges of the HC in three different cases, it would be appropriate to refer the question to a larger bench.

Justice BH Bhatia, in 2010 in the case Steffan Mueller v. the State of Maharashtra, granted bail to a foreigner and held that the NDPS Act does not make all offences non-bailable. The decision was observed by Justice Dangre in the case Santosh Pundalik Kale v. The State of Maharashtra, where the applicant was granted bail after being found with a small quantity of contraband.

In 2020, Justice Sarang Kotwal in the Rhea Chakraborty case found the observations in Steffan Mueller to be devoid of any binding effect, as they did not consider the observations of the Top Court in The State of Punjab v. Baldev Singh. Justice Sarang Kotwal held that the statements and observations of the Constitution Bench in Baldev Singh bind all courts and that Section 37 of the NDPS Act makes all offences cognizable and non-bailable.

Justice Dangre, however, disagreed with Justice Kotwal's view that the Supreme Court's observations in Baldev Singh had binding value and emphasized that the bench was not addressing the issue of availability. Thereafter, she emphasised that the judgment in Baldev Singh was delivered before the 2001 amendment of the NDPS Act, which sought to limit the application of strict bail provisions only to those who indulge in serious offences.