The Structural Architecture Of Bail Denial In India And How They Are Misusing The NDPS Act

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Yash Raj Sharma, BBA LLB (Hons), Bennett University | The Times Group

Prajwal Tapase, Bennett University | The Times Group

ABSTRACT

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), enacted in the heat of epithets of the global intensification of punitive drug controls policies, has developed into one of the most severe criminal laws in India. Characterised by the reversal of the burden of proof, extraordinary bail restrictions and wide police discretion, the Act has created a culture of abuse and a permanent bail crisis. Section 37's imposing conditions in the form of requiring courts to form an opinion as to the innocence of the accused at the pre-trial stage are equivalent to turning bail hearings into premeditated (ahead of time) determinations of guilt by the jury or judge, thus working against the presumption of innocence. Combined with the reverse burden under Sections 35 and 54 and wide procedural lapses in the field of search and seizure, the statute structurally disadvantages accused persons, and results in lengthy periods of incarceration pending trial. Sociological patterns thus show that NDPS enforcement disproportionately targets economically vulnerable populations and functions as a way of social control that are determined by bureaucratic incentives and moralistic public attitude. Comparative analysis, that world over, demonstrates the failure of punitive criminalisation, while public health-oriented models such as that pursued in Portugal's case with the decriminalisation scheme and Canada with the regulated cannabis system work in ways that are significantly enhanced. This article contends that NDPS Act reinforces punitive ideology incompatible with the constitutional values such as fairness, proportionality and liberty and has an eventual failure to control drug dependency and drug trafficking. It advocates a re-calibration of standards on bail, a limitation on reverse burden clauses, a strengthening of the procedure and re-orientation of India's drug policy towards harm reduction. The study concludes that without substantive reform, the NDPS Act will never be structurally safe from misuse and instead will perpetrate injustice, rather than attain its avowed goals.

Keywords: NDPS Act, Bail Denial, Reverse Burden - Criminal Justice, Procedural Safeguards

THE STRUCTURAL ARCHITECTURE OF BAIL DENIAL IN INDIA AND HOW THEY ARE MISUSING THE NDPS ACT.

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