Introduction:

In Mukesh Sharma v. State of Tamil Nadu (2026 LiveLaw (Mad) 55), the Madras High Court was called upon to decide an important and often misunderstood aspect of criminal procedure under the Narcotic Drugs and Psychotropic Substances Act, 1985. The case arose from a large-scale narcotics seizure involving commercial quantity of contraband and raised a nuanced legal question: whether the stringent conditions under Section 37 of the NDPS Act apply even at the stage where an accused, summoned by the trial court, merely seeks acceptance of bond and sureties for appearance. Justice L. Victoria Gowri, while dealing with the petition, made a significant clarification that the rigours of Section 37 are attracted only when an accused seeks liberty from custody, that is, bail, and not when the accused is only securing appearance pursuant to summons issued by the court. The petitioner, Mukesh Sharma, who was arrayed as an accused in a supplementary charge sheet alleging conspiracy under Section 29 of the NDPS Act, approached the High Court seeking a direction to the trial court to accept his sureties. The prosecution resisted the plea by invoking the embargo under Section 37, arguing that even discretionary powers relating to bonds could not be exercised without satisfying the twin conditions of the NDPS Act. The judgment thus assumes importance in demarcating the boundaries between bail, bond for appearance, and the operation of special statutory restrictions under the NDPS regime.

Arguments on Behalf of the Petitioner:

The petitioner contended that his prayer before the High Court was narrow and legally distinct from a bail application. He submitted that he was not seeking release from custody, nor was he attempting to circumvent the stringent conditions imposed under Section 37 of the NDPS Act. His limited request was for acceptance of sureties pursuant to summons issued by the trial court after cognisance was taken on the supplementary charge sheet. It was argued that once summons are issued by a court, the accused is required to appear and furnish bond to ensure future attendance, and such a process cannot be equated with the grant of bail. The petitioner further submitted that Section 88 of the Code of Criminal Procedure, 1973, which empowers the court to take a bond for appearance, is a procedural provision meant solely to secure the presence of an accused during trial and does not involve adjudication of liberty in the manner contemplated under bail provisions. Emphasis was laid on the distinction between “custody” and “appearance,” and it was argued that Section 37 operates only when an accused seeks release from custody. The petitioner also raised the issue of parity, pointing out that a similarly placed co-accused, arrayed through the same supplementary charge sheet, had appeared before the trial court and was permitted to execute a bond with sureties. Denial of a similar opportunity to the petitioner, without any independent adjudication, was alleged to be arbitrary and discriminatory, violating principles of fairness and equality before law. The petitioner further submitted that the prosecution’s allegation that he was absconding was factually incorrect, as he had not been duly served with summons earlier. Once he expressed willingness to appear and comply with the court’s directions, refusal to accept sureties would effectively amount to treating him as guilty even before trial. Therefore, the petitioner urged that the trial court be directed to consider and accept his sureties in accordance with law, without importing the rigours of Section 37 of the NDPS Act into a stage where they were not legally attracted.

Arguments on Behalf of the Prosecution:

The Additional Public Prosecutor strongly opposed the petition, contending that the case involved a serious offence under the NDPS Act relating to commercial quantity of narcotics, namely 140 kilograms of ganja. It was submitted that the petitioner had been arrayed as an accused in the supplementary charge sheet on allegations of criminal conspiracy under Section 29 of the NDPS Act and that he had remained absconding for a considerable period. According to the prosecution, permitting the petitioner to execute a bond and sureties without satisfying the conditions of Section 37 would indirectly dilute the statutory embargo imposed by Parliament. The prosecution argued that Section 37 of the NDPS Act overrides general provisions of criminal procedure and applies to all situations where the court exercises discretion affecting the liberty of the accused. It was contended that even the power under Section 88 of the CrPC, which is discretionary in nature, could not be exercised in isolation and must be read harmoniously with the special statute governing narcotics offences. The Additional Public Prosecutor submitted that acceptance of bond and sureties would, in effect, place the accused at liberty, and therefore the court must first satisfy itself that the twin conditions under Section 37 were met, namely that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. The prosecution further argued that parity could not be claimed as a matter of right, particularly in NDPS cases involving commercial quantity, and that the conduct of the accused, including allegations of abscondence, was a relevant factor. It was urged that the petition deserved dismissal as it sought to bypass the legislative intent behind Section 37, which was enacted to curb the menace of drug trafficking through stringent procedural safeguards.

Court’s Judgment and Reasoning:

Justice L. Victoria Gowri, after considering the rival submissions, undertook a careful examination of the statutory scheme governing bonds, bail, and the special restrictions under the NDPS Act. The Court began by reiterating the settled legal position that issuance of summons and acceptance of bond for appearance cannot be equated with the grant of bail. The Court observed that Section 37 of the NDPS Act is triggered only when an accused seeks liberty from custody, that is, when the court is called upon to decide whether the accused should be released on bail or on his own bond after being arrested or detained. In contrast, when a person is summoned to appear before the court and is required to execute a bond to ensure future attendance, the question of release from custody does not arise at all. The Court emphasised that the embargo under Section 37 is specific and must be strictly construed, as it curtails personal liberty, and therefore cannot be mechanically extended to procedural stages not contemplated by the provision. The Court took note of Section 88 of the CrPC, and its corresponding provision under Section 91 of the Bharatiya Nagarik Suraksha Sanhita, observing that these provisions empower the court to take a bond for appearance of any person present before it. This power, the Court noted, is discretionary and intended solely to secure the attendance of the accused during trial. It does not confer an enforceable right on the accused, nor does it involve a determination of guilt or innocence. Addressing the prosecution’s argument that Section 37 must be complied with even while exercising discretion under Section 88, the Court categorically rejected such an expansive interpretation, holding that it would amount to conflating distinct stages of criminal procedure. The Court observed that if the rigours of Section 37 were to be applied even at the stage of accepting bond pursuant to summons, it would lead to an anomalous situation where an accused summoned by a court would be subjected to bail-like scrutiny without ever being in custody. The Court clarified that while the power to accept bond is discretionary and the trial court is entitled to consider relevant factors, including conduct of the accused, it cannot refuse to consider the request solely on the basis of Section 37 when the accused is not seeking bail. With respect to parity, the Court held that parity alone cannot be the sole basis for acceptance of sureties, but at the same time, denial of consideration without adjudication would be unsustainable. In the present case, the Court found that the petitioner was not attempting to bypass the rigours of the NDPS Act and that his prayer was limited to consideration of acceptance of sureties. Accordingly, the High Court directed the trial court to consider the petitioner’s request in accordance with law, uninfluenced by parity alone and without importing the embargo under Section 37 at the threshold. The petition was thus disposed of with a clear clarification of law, reinforcing the distinction between bail and bond for appearance under criminal procedure.