Are all offences under NDPS Act non-bailable? Single-Judge refers question to larger bench of Bombay High Court

A single-judge of the Bombay High Court has referred to larger bench the issue of whether all offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) are non-bailable [Karishma Prakash v. Union of India and Ors]..Justice Bharati Dangre was hearing an anticipatory bail application filed by cine actor Deepika Padukone's former manager Karishma Prakash, who apprehended her arrest in the drugs case related to actor Sushant Singh Rajput's death. The application was rejected..However, in the backdrop of the facts of the case and in the wake of arguments advanced by Senior Advocate Aabad Ponda, who appeared for Prakash, and advocate Shreeram Sirsat for the Central government, Justice Dangre concluded that the following question arose for determination:Whether all offences under the NDPS Act, 1985 are non-bailable, irrespective of the punishment prescribed and irrespective of the fact that many offences do not even mandate imprisonment as a punishment?.Ponda asserted that in the wake of conflicting views of single-judges of the High Court in three different cases, it would be most appropriate to refer the question to a larger bench.In 2010, Justice BH Bhatia in Steffan Mueller v. State of Maharashtra, had granted bail to a foreign national and held that the NDPS Act does not make all offences non-bailable. This decision was followed by Santosh Pundalik Kale v. The State of Maharashtra, in which Justice Dangre granted bail to an applicant who was found with a small quantity of contraband.In 2020, Justice Sarang Kotwal in Rhea Chakraborty v. The Union of India and Ors., found the observations of the single-judge in Steffan Mueller to be devoid of any binding effect, as they did not consider the observations of the Constitution Bench of the Supreme Court in The State of Punjab v. Baldev Singh. Asserting that the statements and observations of the Constitution Bench in Baldev Singh bound all courts, it was held that Section 37 of the NDPS Act makes all offences cognizable and non-bailable..However, Justice Dangre did not agree with Justice Kotwal's view that the Supreme Court's observations in Baldev Singh had a binding value and underlined that the bench was not dealing with the issue of bailability."When the decision of the Constitution Bench in case of Baldev Singh is read in its entirety, it can be seen that while delivering the said judgment, the Constitution Bench was confronted with an issue about the imperative nature of Section 50 of the NDPS Act and whether compliance with the said section is mandatory and if it is so, what is the effect of its breach," she explained.After analysing Section 37 of the Act through all the amendments, Justice Dangre stated,"Had the legislature intended to make every offence, non-bailable, it could have explicitly made it so, like when it intended to make every offence cognizable, it worded itself specifically.".It was also observed that it was not open to Justice Kotwal to take a view contrary to the one taken by Justice Bhatia, and that he ought to have referred the matter to a larger bench if he disagreed with the view.Thereafter, she underscored that the judgment in Baldev Singh was delivered prior to the 2001 amendment of the NDPS Act, which sought to restrict the application of strict bail provisions only to those who indulge in serious offences.Keeping in mind the observations made by the 155th Law Commission Report calling for a reformative approach to be adopted towards accused found in possession of small quantity of drugs, Justice Dangre deemed it appropriate to place the matter before Chief Justice Dipankar Datta for making a reference to a larger bench in order to determine the question..[Read Order]