Madras HC Clarifies: Section 37 of NDPS Act Not Applicable to Acceptance of Bond for Appearance [Read Order]

Chennai: The Madurai Bench of the Madras High Court has held that the rigorous conditions prescribed under Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, do not apply when an accused seeks acceptance of bond for appearance pursuant to summons, as such relief is distinct from the grant of bail.

Justice L. Victoria Gowri, while disposing of a criminal original petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, observed that the embargo under Section 37 of the NDPS Act comes into play only when liberty from custody is sought, and not when the accused is merely securing appearance pursuant to summons.

The petition was filed by Mukesh Sharma, the sixth accused in a case involving alleged recovery of 140 kilograms of ganja, seeking a direction to the trial court to accept his sureties as per the docket order dated August 20, 2025. The petitioner was arrayed as an accused in a supplementary charge sheet alleging conspiracy under Section 29 of the NDPS Act.

The Court noted that the petitioner was not seeking bail, anticipatory bail, or discharge, but merely a direction to the trial court to act upon its own docket order relating to acceptance of sureties. The Court emphasized that procedural fairness cannot be rendered illusory by mechanical application of law divorced from the nature of the relief sought.

The Additional Public Prosecutor opposed the petition, contending that the petitioner was an absconding accused in a commercial quantity NDPS case and that even for exercise of power under Section 88 CrPC (now Section 91 BNSS), compliance with Section 37 of the NDPS Act was mandatory. Reliance was placed on judgments including Pankaj Jain v. Union of India [(2018) 5 SCC 743], Satender Kumar Antil v. CBI [(2022) 10 SCC 51], and State vs. L. Antony Adimai [2023 (1) LW (Crl) 277].

The Court observed that while Section 88 of the Code of Criminal Procedure (now Section 91 BNSS) is discretionary and does not mandate acceptance of bond, the issuance of summons and acceptance of bond for appearance cannot be equated with the grant of bail.

The Court further held that the trial court must independently apply its mind, record reasons, and ensure that acceptance of bond does not result in indirect circumvention of Section 37 of the NDPS Act. The Court stated that while it cannot issue a mandamus to accept sureties, it can direct the trial court to consider the petitioner’s appearance and request in accordance with law.

Emphasizing the balance between enforcement and fairness, the Court observed:
“The war against narcotics must be relentless, but it must also be lawful. Procedural safeguards are not obstacles to justice, they are its handmaidens. Courts must ensure that in enforcing stringent statutes, fairness is not sacrificed at the altar of severity.”

The Court directed the petitioner to appear before the trial court within two weeks and directed the trial court to consider the request for acceptance of bond/sureties strictly in accordance with law, bearing in mind the discretionary nature of Section 88 CrPC (Section 91 BNSS) and the rigour of Section 37 of the NDPS Act. The trial court was directed to pass a reasoned order without being influenced by any earlier orders relating to co-accused.

The Court clarified that it had not expressed any opinion on the merits of the case, bail entitlement, or culpability of the petitioner.

Appearances:
For Petitioner: Mr. S. Kasirajan, Advocate
For Respondent: Mr. S. Ravi, Additional Public Prosecutor

Case Title: Mukesh Sharma vs. State of Tamil Nadu
(Crl.O.P.(MD) No. 22794 of 2025)

[Read Order]