Legal basis of rejection of bail application of Rhea Chakraborty in Sushant Singh Rajput case

A Special Court in Mumbai has rejected the bail application of Bollywood actor Rhea Chakraborty, who has been arrested by the Narcotics Control Bureau (NCB) for a drug-related case. She has been involved in the controversy relating to death of actor Sushant Singh Rajput (SSR).

Let me point out what is the legal basis of rejection of her bail application.

At the outset itself, let me point out that there are some very stringent provisions relating to bail in the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). She has been booked by NCB under one of those rare sections for which such stringent bail provisions apply, though it appears that NCB may not necessarily be acting fairly in this regard.

Offence under Section 27-A of NDPS Act.

Rhea Chakraborty has been booked under Section 27-A of the NDPS Act, which is as under:

“27-A. Punishment for financing illicit traffic and harbouring offenders.—Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viii-a) of Section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

It appears that the clause (viii-a) mentioned in Section 27-A actually should mean clause (viii-b) since this clause was apparently re-numbered in 2014; and the 5 types of activities referred to and included in sub-clauses (i) to (v) are as under:

“(i) cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment of narcotic drugs or psychotropic substances;

(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or

(v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv);”

Now, it appears from media reports that Rhea Chakraborty has been booked for financing these activities and supplying drugs to Sushant Singh Rajput. And, by doing so, she has been booked for the serious offence of Section 27-A, which is basically meant for professional drug dealers who deal in large quantities and/or in professional manner of dealing in drugs as a business.

As seen above, the maximum punishment for Section 27-A offence can be 20 years in jail.

Stringent bail provisions under S. 37 of NDPS Act.

Now, there are certain stringent bail provisions contained in Section 37 of the NDPS Act:

“37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.”

What are stringent bail conditions?

So, what are the stringent bail conditions? Firstly, the Public Prosecutor has to be heard before grant of bail. Secondly, if he opposes the bail, then before granting bail, the court has to be satisfied that there are reasonable grounds to believe that: (a) the accused is NOT guilty of such offence, and (b) the accused is NOT likely to commit any offence while on bail.

Usually, the court will not likely to get satisfied at such earlier stage that the accused is NOT guilty of the offence and also that he or she will NOT commit ANY offence while on bail.

Therefore, generally, bail is refused for these offences, which are mentioned in Section 37 above.

For which offences such stringent bail conditions apply?

Now, what are these offences for which these stringent bail conditions apply? Well, there are four types of offences:

(1) Offence under Section 19 of NDPS Act, or

(2) Offence under Section 24 of the Act, or

(3) Offence under Section 27-A of the Act, or

(4) Other offences under NDPS Act involving commercial quantity (which are defined in the Act, and are generally large quantities of the banned drugs, etc.).

While full details of the case are not available online, it appears that Rhea Chakraborty has been booked under a stringent legal provision, under Section 27-A of the NDPS Act, which is basically meant for professional drug dealers.

Due to these reasons, her bail application has been rejected by the Special Court, as her case has been shown to be under such stringent provisions of law.