The Narcotics Control Bureau (NCB) on Tuesday told the Supreme Court it was not challenging the bail granted to actor Rhea Chakraborty in connection with a drugs-related probe linked to the death of film star Sushant Singh Rajput.

Additional Solicitor General S V Raju told a bench of Justices A S Bopanna and M M Sundresh that NCB is not challenging the bail but the question of law should be kept open with regard to Section 27-A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

The top court, which was hearing the NCB's petition against the Bombay High Court order granting bail to Chakraborty, Rajput's girlfriend, took note of the ASG's submission on a change in the anti-drugs agency's stand on her bail, but clarified that the HC judgement shall not be treated as precedent in any other case.

"Having heard the ASG, at this stage the challenge to the impugned order in so far as grant of bail may not be required. However, the question of law raised is left open to be considered in an appropriate case and as such the judgement may not be treated as precedent in any other case," the bench said.

The NCB has charged Chakraborty under the stringent Section 27-A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act that pertains to "financing and harbouring illegal drug trafficking". It entails imprisonment of up to 10 years and a bar on grant of bail.

The high court had said simply paying for a particular drug transaction does not qualify as financing drug traffic.

"The allegations against the applicant of spending money in procuring drugs for Sushant Singh Rajput will not, therefore, mean that she had financed illicit traffic," the high court had said.

It had also noted that harbouring an offender as described under the Act would mean providing money for that person's drug consumption while also giving him shelter and food.

While granting her bail on a personal bond of Rs 1 lakh, the high court had observed in its order that Chakraborty did not have criminal antecedents, and it was unlikely that she would tamper with evidence or affect the probe while out on bail.

Rajput, for whom Rhea allegedly procured drugs, had no apprehension of arrest and therefore, the charge of harbouring too could not be applied, it had said. The court had also dismissed the argument that Rhea's bail be rejected to "send out a strong message" to society.

The court also held that a detailed interpretation of the NDPS Act and previous judgments of the Supreme Court showed that all offences under the Act were non-bailable. Also, section 27-A can be invoked even if the quantity of the drug seized is not "commercial", the judge said.

In India a bailable offence is under which a person can be enlarged on bail soon after arrest. In non-bailable cases, which include those of rape, murder, kidnapping, human trafficking, counterfeiting and terrorism, the bail depends on the discretion of court.

However, in Chakraborty's case, since there was no financing or harbouring (of drugs or its consumers), Section 27-A could not be applied, the HC said.

Rajput, 34, was found hanging at his apartment in suburban Bandra on June 14, 2020. After a case of alleged abetment to suicide was registered against Chakraborty by Rajput's parents, a parallel probe into alleged drug procurement by her also began on the basis of her WhatsApp chats.

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