Bombay High Court to hear today the bail applications of actor Rhea Chakraborty and her brother Showik Chakraborty in the NDPS case registered by the Narcotics Control Bureau alleging that they procured drugs for the late actor Sushant Singh Rajput.
Rhea was remanded on Sep 14.

Justice S V Kotwal begins the hearing. He says that first he will consider the legal issue whether the rigour of Section 37 NDPS Act regarding grant of bail will apply in the case.

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Advocate Taraq Sayeed starts submissions for the co-accused Abdel Basit Parihar.
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Where the offences are punishable with a maximum of one year sentence, such offences ought to be regarded as bailable under NDPS Act, submits Adv Sayeed.
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If the recoveries are small quantities, the offences are bailable : Adv Sayeed.

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Adv Satish Maneshinde (lawyer for Rhea & Showik) making submissions about the legislative history of NDPS Act.
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The 1989 amendment to NDPS Act, which inserted Sections 27 and substituted Section 37 to impose rigorous conditions for grant of bail was made pursuant to the UN Convention on illicit drug trafficking : Maneshinde (Rhea's lawyer)

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Justice Kotwal interrupts Maneshinde and says he wants to hear on the bailable/non-bailable aspect under the NDPS Act.

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Maneshinde agrees. He cites the decision of Bombay HC in "Pramod Ganpat Wankhede And Anr. vs State Of Maharashtra".

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"..under the amended provision the restriction on granting bail is dependent on specific offences under the Act and also involvement of a contraband article of commercial quantity or more under this Act", Maneshinde (Rhea's lawyer) quotes from the precedent.

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".. it will be seen that the rigour of Section 37 placing restriction on granting bail, has been liberal making it dependent on the quantity of the contraband article found in possession of the offender" - Maneshinde (Rhea's lawyer) quotes from the precedent.

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"Judges should note that bar for granting bail in respect of the offences under the Act is made dependent on specific offences, enumerated in amended Section 37 of the Act & involvement of commercial quantity or more of the contraband article" - Maneshinde quotes from precedent.

Justice Kotwal : If it is small quantity, the rigour of Section 37 will not apply? But will that make the offence bailable.

Maneshinde : Yes.

J Kotwal : They (judges in the precedent) have not said that. They said Section 37 will not apply.

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Maneshinde : Drastic changes(regarding rigourus condition to grant bail) were regarding commercial quantities. That was the object behind the 2001 amendment.
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Maneshinde : The amendment was to rationalize the punishments and to restrict the grant of bail to those indulging in serious offences.

Section 37 not applicable to small quantity.
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Justice Kotwal again remarks that the non-application of Section 37 does not make the offences bailable.
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Advocate Subodh Das, appearing for co-accused Samuel Marshal Miranda (Sushant's domestic help) says he adopts the arguments of Maneshinde.

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ASG Anil Singh (for NCB) submits that arguments of the applicants regarding the interpretation of Section 37 are not correct.
Every offence under NDPS is non-bailable; the provision is clear on that : ASG.
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ASG Anil Singh : CrPC has no application to NDPS bail. Section 37 starts with a non-obstance clause.
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ASG Anil Singh : Court has to bear in mind the backdrop in which the provision has been made while interpreting it. The legislative intent has to be taken into account. SC has observed that the offences are worse than murder or culpable homicide.
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ASG Anil Singh : Murder or culpable homicide affect a family. These offences (drugs offences) affect the entire society. Youngsters are getting affected. The Court has to take into account these factors while interpreting the limitation on granting bail.

ASG Anil Singh : Legislature was conscious that when NDPS applies, CrPC will not apply. So the provisions of CrPC regarding bailable offences will not apply. The NDPS offences are therefore non-bailable.

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Justice Kotwal observes that the 1999 constitution bench judgment of SC in 'State of Punjab vs Baldev Singh' clearly says that all the offences under Section 37 are non-bailalbe and that settles the debate.
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But this does not mean that other arguments are not available. One door is closed does not mean other doors are not open. I will consider other arguments : Justice S V Kotwal.
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Justice Kotwal now asks the counsels to argue on the individual facts of each case.

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Adv Sayed starts submissions for co-accused Abdel Basit Parihar.

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On Aug 28, Abbas Lakhani and Karan Arora were arrested and 13 grams of ganja were seized. They were granted bail. Based on their statements, on Sep 2, Abdel Basit Parihar (the present applicant) was arrested : Sayed.
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Kaizan Ebrahim and Zaid Viltara were also arrested : Sayed.
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Sayed : All these people have been rounded-up with a single submission that Sushant Singh was consuming drugs.
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Sayed : No recovery has been made from the five applicants before the Court.
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Sayed : On the basis of statements of the arrested persons, others were arrested, who were alleged to be in the trade.
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Justice Kotwal : So there is a chain?

Sayed : The chain allegedly ended with Sushant Singh, who died in June.

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Sayed : Sushant expired in June. We are being charged with conspiracy to supply drugs to him in the month of March.
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Sayed : Whatever recoveries they have made today from people like Keshwani, can that be a part of the conspiracy to supply drugs to Sushant, who is now no more?
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Sayed : The allegation is that we facilitated the consumption of drugs by Sushant. Accepting that theory at face value at this stage, what can I be charged for? Consumption is Sec 27. The persons can therefore be at most charged under Section 29.

Sayed : Can an offence of conspiracy be higher than the principal offence?

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Sayed : At the time of remand, there was no non-bailable offence. My client is a student of architecture who lost one year.
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Sayed : The mischief of NCB is that they do not mention whether it is small or commercial category.

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Sayed : Statement recorded by NCB under Section 67 can be used only to corroborate seizure.

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Sayed : In a given case of no recovery, and if my involvement cumulatively does not exceed small quantity, how can my statement be looked into unless there is a recovery of contraband.

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Sayed : More people in our country die smoking cigarettes and chewing gutka (than consuming drugs). So let us leave aside all the moralistic arguments.
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