Section 167 crpc
Querist :
Anonymous
(Querist) 13 October 2011
This query is : Resolved
dear experts.my doubt is reg police custody.is it right that police custody which is also called police remand can only be given during first 15 days fro the date of arrest of accused.and if not given during first 15 days then it can not be given.pls answer with any case my doubt.
Nadeem Qureshi
(Expert) 13 October 2011
167. Procedure when investigation cannot be completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
1[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other offence,
And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;
(c) No Magistrate of the second class, not specially empowered in this behalf by the high Court, shall authorize detention in the custody of the police.
2[Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in Custody so long as he does not furnish bail.]
3[Explanation II].If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorizing detention.
2[(2A) Notwithstanding, anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, lot reasons to be recorded in writing, authoress the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorized, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.]
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.
1. Subs, by Act 45 of 1978, sec. 13, for paragraph (a)(w.e.f. 18-12-1978).
2. Ins. by Act 45 of 1978, sec. 13 (w.e.f. 18-12-1978).
3. Original Explanation numbered as Explanation II by Act 45 of 1978, sec. 13 (w.e.f.18-12-1978).
STATE AMENDMENTS
Andaman and Nicobar Islands and Lakshadweep:
In section 167, -
(i) In sub-section (1) after the words "nearest Judicial Magistrate" the words "or, if there is no Judicial Magistrate in an island, to an Executive Magistrate functioning in that island" shall be inserted;
(ii) After sub-section (1), the following sub-section shall be inserted, namely.
"(1A) Where a copy of the entries in diary is transmitted to an Executive Magistrate, reference in section 167 to a Magistrate shall be construed as references to such Executive Magistrate;"
(iii) To sub-section (3), the following proviso shall be added, namely.
"Provided that no Executive Magistrate other than the District Magistrate or Sub-divisional Magistrate, shall unless he is specially empowered in this behalf by the State Government authorize detention in the custody of the police."
(iv) To sub-section (4), the following proviso shall be added, namely.
"Provided that, where such order is made by an Executive Magistrate, the Magistrate making the order shall forward a copy of the order, with his reasons for making it, to the Executive Magistrate to whom he is immediately subordinate."
[Vide Regulation 1 of 1974, sec. 5 (w.e.f. 30-3-1974)].
Gujarat:
In the proviso to sub-sec. (2) of section 167, -
(i) For paragraph (a), the following paragraph shall be substituted, namely.
"(a) The Magistrate may authorize detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this section for a total period exceeding-
(i) One hundred and twenty days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.
(ii) If sixty days, where the investigation relates to any offence:
And on the expiry, of the said period of one hundred and twenty days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under tire provisions of Chapter XXXIII for the purposes at that Chapter;
(ii) In paragraph (b), for the words " no Magistrate shall" the words "no Magistrate shall, except for reason to be recorded in writing" shall be substituted:
(iii) The Explanation shall be numbered as Explanation II and before Explanation II as so remembered, the following Explanation shall be inserted, namely.
Explanation 1 - For the avoidance of' doubts, it is hereby, declared that, not withstanding the expiry of' the period specified in paragraph (a) the accused person shall be detained in custody so long as he does not furnish bail.
Amendment to apply to pending investigation.-The provisions of' section 167 of the Code of Criminal Procedure, 1973, as amended by this Act, shall apply to every investigation pending immediately, before the commencement of this Act. If the period of' of detention of' the accused person, otherwise than in the custody of the police authorised under that section, had not, at such commencement, exceeds sixty days.
[Vide President Act 21 of' 1976 (w.e.f. 7-5-1976)]. [Ed. These amendments have been made prior to the enactment of the Code of Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978), sec. 13 (w.e.f. 18-12-1978)].
Haryana:
After section 167, insert the following section namely.
"167A.-Procedure on arrest by Magistrate.- For the avoidance of doubt, it is hereby declared that the provisions of' section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, Magistrate whether executive or Judicial"
[Vide President Act 20 of 1981, sec. 2 (w.e.f.22-12-1981)].
Orissa:
In section 167, in paragraph (a) of the proviso to sub-section (2),-
(i) for the words "under this paragraph" the words " under this section" shall be substituted; and
(ii) for the words "ninety days" wherever they occur, the words "one hundred and twenty days" shall be substituted.
[Vide Orissa Act, 11 of 1997 sec. 2 9w.e.f. 20-10-1997)].
Punjab:
In section (2) of 'section 167, for the words "fifteen days" at both the places where they occur, the words "thirty days" shall be substituted.
[Vide president Act 1 of' 1984, sec. 2 (w.e.f 23-6-1984)].
Tripura:
In paragraph (a) of the proviso to sub-section (2) of' section 167, -
(a) For the words "ninety days" wherever they occur, the words under hundred eighty days shall he substituted;
(b) For the words "sixty days" wherever they occur, the words "one hundred twenty days" shall be substituted.
[Vide Tripura Act 6 of' 1992. sec. 2 (w.e.f 29-7-1992)].
Uttar Pradesh:
After section 167, insert the following section namely:
"167A. Procedure on arrest by Magistrate.-For the avoidance of doubts, it is hereby declared that the provisions of section 167 shall so far as may be, apply in relation to any person arrested by, or under any order or direction of, a Magistrate whether executive or Judicial.
[Vide U.P. Act 18 of 1978].
West Bengal:
In section 167, -
(a) For sub-section (5). The following sub-section shall be submitted.
"(5) If, in respect of -
(i) Any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or
(ii) Any case exclusively triable by a Court of Sessions or a case under Chapter XVIII of the Indian Penal Code (45 of 1860), the investigation in not conducted within a period of three years, or
(iii) Any case other than those mentioned in clauses (i) and (ii), the investigation is not conducted within a period of two year, from the date on which the accused was arrested made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period mentioned in this sub-section is necessary".
(b) In sub-section (6), after the words any order stopping further investigation into an offence has been made "the words "and the accused has been discharged" shall be inserted.
[Vide W.B. Act 24 of 1988 sec. 4].
prabhakar singh
(Expert) 13 October 2011
Mr.Nadeem has left nothing for others.
kuldeep kumar
(Expert) 13 October 2011
police remand can be given during any time but nature of custody can be changed during first 15 days not thereafter.there is no limitaion when it can be given.
Raj Kumar Makkad
(Expert) 13 October 2011
Equivalent Citation: 1995(2)ALT(Cri)310, 1995(43)BLJR1073, 1996(54)ECC7, (1996)2GLR387, JT1995(4)SC253,
1995(3)SCALE72, (1995)4SCC190, [1995]3SCR905, 1995(2)UJ422(SC)
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 611-12 of 1995
Decided On: 01.05.1995
Appellants: Union of India (UOI)
Vs.
Respondent: Thamisharasi and Ors.
WITH
Appellants: Intelligence Officer, Narcotics Control Bureau
Vs.
Respondent: Arif U. Patel
Hon'ble Judges: J.S. Verma and Sujata V. Manohar, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K.T.S. Tulsi, Additional Solicitor General, V.J. Francis and V.K. Verma, Advs
For Respondents/Defendant: Ram Jethmalani, B. Kumar and K.K. Mani, Advs.
Subject: Criminal
Acts/Rules/Orders:
Criminal Procedure Code (CrPC), 1973 - Sections 167, 167(2) and 437; Narcotic Drugs and Psychotropic
Substances Act, 1985 - Sections 36A, 36C, 37 and 51; Terrorist and Disruptive Activities (Prevention) Act, 1987 -
Section 20
Cases Referred:
Matabar Panda Bisnu Charan Parida Batakrushna Parida Babaji Panda v. State of Orissa 1975 Supp SCR 137
Prior History:
Appeal From the Judgment and Order dated 14-12-1994 of the Madras High Court in H.C.P. Nos. 1675 and 1692 of
1994
Case Note:
Criminal - right of bail - Sections 167 of CrPC, 1973 and Sections 36 (C) and 37 of Narcotics Drugs and
Psychotropic Substances Act, 1985 - whether Section 167 applicable for offence under Narcotics Drugs and
Psychotropic Act, 1985 - Section 36 (C) of Act says "save as otherwise provided Provisions of CrPC applies
to Proceedings before Special Court - limitation on granting of bail under Section 37 comes in only when it is
to be decided on merits - Court has no power of remand unless power is conferred by law - held, Section 167
applies in case covered by Act of 1985.
Citing Reference:
Natabar Panda Bisnu Charan Panda Batakrushna Parida Babaji Panda v. State of Orissa Discussed
Narcotics Control Bureau v. Kishan Lal and Ors. MANU/SC/0152/1991
Distinguished
JUDGMENT
J.S. Verma, J.
1. Leave granted in special leave petitions.
2. The common question of law for decision is : whether the proviso to Sub-section (2) of Section 167 of the CrPC,
1973 can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs and
1
Psychotropic Substances Act, 1985 (hereinafter referred to as "the Narcotic Drugs & Psychotropic Substances Act_".)
to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period?
The Madras High Court has answered this question in the affirmative and directed the release on bail of the
respondents who were arrested for the commission of offences under the Narcotic Drugs & Psychotropic Substances
Act_ in default of filing the complaint within that period. Hence these appeals by special leave.
3. The material facts are only a few. Admittedly, the Narcotics Control Bureau got a tip-off that a consignment of
flasks exported from Madras to Israel contained Hashish concealed therein; and pursuant to this tip-of the
consignment was seized at Israel on 8.6.1994. On the bask of information, the premises of the accused Armukham,
Nagraj and Arif U. Patel were searched at Madras and their statements recorded by the concerned authorities. These
accused were arrested on 27.6.1994 and produced before the Magistrate who granted remand from time to time. We
need not mention the facts relating to the orders of preventive detention of the accused under the Prevention of Illicit
Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 since that is the subject matter of a different
proceeding wherein the order of preventive detention was challenged. Admittedly, the complaint against the accused
was not filed within the maximum period of 90 days of the arrest specified in the proviso to Sub-section (2) of Section
167 Cr. P.C. as the total period for which the accused can be remanded to custody during investigation. Accordingly,
the accused claimed to be released on bail as of right on expiry of the specified period of 90 days and they have been
directed to be released on bail on that ground alone. The High Court has rejected the prayer for cancellation of the
bail by the impugned order. Hence, these appeals which involved for decision the aforesaid common question of law.
4. It may be mentioned that in the meantime, after the aforesaid prescribed period, the complaint has been filed but
this subsequent fact is not material for decision of the above question of law. It is common ground that the legality of
the impugned order granting bail is to be decided with reference to its date prior to the filing of the complaint. The
power to detain the accused on the basis of the material now available on merits or the liability of the accused for
preventive detention is a separate question which does not arise for consideration herein, and would remain
unaffected by the view taken in these appeals on the sole question for decision.
5. The submission of the learned Additional Solicitor General is that by virtue of the special provisions in the Narcotic
Drugs & Psychotropic Substances Act_ and particularly Sections 36 and 37 thereof, the application of the proviso to
Sub-section (2) of Section 167 Cr. P.C. is excluded in the case of a person accused of any offence punishable under
the Narcotic Drugs & Psychotropic Substances Act_. On the other hand, Shri Ram Jethmalani, learned counsel for
the respondents contends that the scheme of the Narcotic Drugs & Psychotropic Substances Act_ supports the
applicability of the proviso to Sub-section (2) of Section 167 Cr. P.C. instead of indicating its exclusion in such cases.
6. The relevant provisions in the CrPC, 1973 are as under:
4. Trial of offence under the Indian Penal Code and other laws. - (1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and otherwise deal with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the
same provisions, but subject to any enactment for the time being in force regulating the manner trying or otherwise
dealing with such offences.
167. Procedure when investigation cannot be completed in twenty-four hours. - (1) Whenever any person is arrested
and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four
hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making the investigation, if he is not below the rank of subinspector,
shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter
prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not
jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or
commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a
Magistrate having such jurisdiction.
7. Provided that -
(a) the Magistrate may authorities the detention of the accused person, otherwise than in the custody of the police,
beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under this paragraph for a total period exceeding.
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
2
(ii) sixty days, were the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be
released on bail of he is prepared to and does furnish bail, and every person released on bail under this sub-section
shall be deemed to be so released under the provisions of chapter XXXIII for the purpose of that chapter:
(b)...
(c)...
Explanation I. - For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
xxx xxx xxx
8. The relevant provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985 are as under:
36-A. Offences triable by Special Courts. - (1) Notwithstanding anything contained in the CrPC, 1973 (2 of 1974), -
(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence
has been committed or where there are more Special Courts than one for such area, by such one of them as may be
specified in this behalf by the Government.
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a
Magistrate under Sub-section (2) or Sub-section (2-A) of Section 167 of the CrPC, 1973 (2 of 1974), such Magistrate
may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in
the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an
Executive Magistrate:
Provided that where such Magistrate considers -
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorised by him,
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court
having jurisdiction ;
(c) the Special Court may exercise, in relation to the person forwarded to it under Claues (b), the same power which a
Magistrate having jurisdiction to try a case may exercise under Section 167 of the CrPC, 1973 (2 of 1974), in relation
to an accused person in such case who has been forwarded to him under the section;
xxx xxx xxx
(3) Nothing contained in this section shall be deemed to affect that special powers of the High Court regarding bail
under Section 439 of the CrPC 1973 (2 of 1974), and the High Court may exercise such powers including the power
under Claues (b) of Sub-section (1) of that section as if the reference to "Magistrate" in that section included also a
reference to a "Special Court" constituted under Section 36.
36-C. Application of Code to proceedings before a Special Court. - Save as otherwise provided in this Act, the
provisions of the CrPC, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the
proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to
be a Court of Session and the person conducting a prosecution before a Special Court shall be deemed to be a
Public Prosecutor.
37. Offence to be cognizable and nonbailable - (1) Notwithstanding anything contained in the CrPC, 1973 (2 of 1974).
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act 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
3
(ii) where the Public Prosecutor oppose 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.
xxx xxx xxx
51. Provisions of the CrPC, 1973 to apply to warrants, arrests, searches and seizures. - The provisions of the CrPC
1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants
issued and arrests, searches and seizures made under this Act.
9. Section 36A makes it clear that a person accused of or suspected of the commission of an offence under the
Narcotic Drugs & Psychotropic Substances Act_ is to be forwarded to a Magistrate under Sub-section (2) or Subsection
(2-A) of Section 167 Cr. P.C.; and the Special Court constituted under Section 36 of the Act exercises, in
relation to the person so forward to it, the same power which a Magistrate having jurisdiction may exercise under
Section 167 Cr. P.C. in relation to an accused person forwarded to him under that Section. The clear reference to the
power of the Magistrate under Section 167 Cr. P.C. particularly Sub-section (2) thereof, is an indication that no part
of Sub-section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to
the contrary in the Narcotic Drugs & Psychotropic Substances Act_. This conclusion is reinforced by some other
provisions of the Narcotic Drugs & Psychotropic Substances Act_, Section 36C says that "save as otherwise
provided in this Act, the provisions of the CrPC, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall
apply to the proceedings before a Special Court." This also indicates that the provisions in the CrPC relating to bail
and bonds are applicable to the proceedings before a Special Court under the Narcotic Drugs & Psychotropic
Substances Act_ "save as otherwise provided in this Act." Section 51 also says that the provisions of the CrPC, 1973
shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests,
searches and seizures made under this Act. Except for Section 37 of the Narcotic Drugs & Psychotropic Substances
Act_, no other provision of the Narcotic Drugs & Psychotropic Substances Act_ is relied on to contend that there is
any inconsistent provisions in the Narcotic Drugs & Psychotropic Substances Act_ to exclude the applicability merely
of the proviso to Sub-section (2) of Section 167 Cr.P.C. when Sub-section (2) of Section 167 of the Code is made
expressly applicable by Section 36A of the Narcotic Drugs & Psychotropic Substances Act_.
10. The question, therefore, is: Whether Section 37 of the Narcotic Drugs & Psychotropic Substances Act_ is an
inconsistent provision of this kind to exclude the applicability merely of the proviso to Sub-section (2) of Section 167
Cr.P.C. when Sub-section (2) of Section 167 is expressly made applicable by the Narcotic Drugs & Psychotropic
Substances Act_? The non-obstante clause at the beginning of Sub-section (1) of Section 37 indicates that the
provisions in Claues (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a)
makes every offence punishable under this Act to be cognizable. Clause (b) imposes limitations on granting of bail
specified therein which are in addition to the limitations under the CrPC on granting of bail as stated in Sub-section
(2) of Section 37. Clause (b) of Sub-section (1) specifies the two limitations on granting of bail, namely, (1) an
opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are
reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any
offence while on bail. The learned Additional Solicitor General contends that these limitations on granting of bail
specified in Claues (b) of Sub-section (1) of Section 37 indicate that the applicability of the proviso to subsection (2)
of Section 167 Cr.P.C. is excluded in such cases. We are unable to accept this contention.
11. The limitations on granting of bail specified in Claues (b) of Sub-section (1) of Section 37 come in only when the
question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is
automatic on account of the default in filing the complaint within the maximum period of custody permitted during
investigation by virtue of Sub-section (2) of Section 167 CR. P.C. The only fact material to attract the proviso to Subsection
(2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit
custody during investigation and not the merits of the case which till the filing of the complaint are not before the court
to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned
Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents
of the case diary even before the chargesheet has been filed. This is fallacious. Till the complaint is filed the accused
is supplied no material from which he can discharge the burden placed on him by Section 37(l)(b) of the Narcotic
Drugs & Psychotropic Substances Act_. In our opinion, such a construction of Claues (b) of Sub-section (1) of
Section 37 is not permissible.
12. Sub-section (3) of Section 36A provides that the special powers of the High Court regarding bail under Section
439 of the CrPC shall not be affected by anything contained in Section 36A of the Narcotic Drugs & Psychotropic
Substances Act_. Sub-section (2) of Section 167 Cr. P.C. has been expressly applied by Section 36A of the Act and
the scheme of the Act is that the provisions of the Code would apply except where there is any inconsistent provision
in this Act in relation to arrests made under this Act. It is this context in which Section 37(l)(b) has to be construed
wherein are specified the limitations on granting of bail. We must, therefore, look to the corresponding provision in the
CrPC with which Section 37(1)(b) of the Act can be treated to be inconsistent. In the CrPC, it is Section 437 and not
Section 167 which is the corresponding provision for this purpose. The corresponding limitation on grant of bail in
case of non-bail able offence under Section 437 is as follows:
(i) such person shall not be so re-leased if there appear reasonable grounds for believing that he has been guilty of
an offence punishable with death or imprisonment for life;
4
In other words, under Section 437 of the Code the person is not to be released on bail "if there appear reasonable
grounds for believing that he has been guilty of an offence..." while according to Section 37 of the Narcotic Drugs &
Psychotropic Substances Act_, the accused shall not be released on bail unless "the court is satisfied that there are
reasonable grounds for believing that he is not guilty of such offence...". The requirement of reasonable grounds for
belief in the guilt of the accused to refuse bail is more stringent and, therefore, more beneficial to the accused than
the requirement of reasonable grounds for the belief that he is not guilty of the offence under Section 37 of the
Narcotic Drugs & Psychotropic Substances Act_. Under Section 437 Cr. P.C. the burden is on the prosecution to
show the existence of reasonable grounds for believing that the accused is guilty while under Section 37 of the Act
the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the
offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution
showing the existence of reasonable grounds to believe that the accused is guilty while under the Narcotic Drugs &
Psychotropic Substances Act_ it is the accused who has to show that there are reasonable grounds for believing that
he is not guilty.
13. The limitation on the power to release on bail in Section 437 Cr. P.C. is in the nature of a restriction on that
power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this
power in Section 37 of the Narcotic Drugs & Psychotropic Substances Act_ is in the nature of a condition precedent
for the exercise of that power, so that, the accused shall not be released on bail unless the Court is satisfied that
there are reasonable grounds to believe that he is not guilty. Under Section 437 Cr. P.C, it is for the prosecution to
show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on
the power to grant bail; but under Section 37 Narcotic Drugs & Psychotropic Substances Act_, it is the accused who
must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the
embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes
Section 37 of the Narcotic Drugs & Psychotropic Substances Act_ more stringent.
14. Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the CrPC supersedes the
corresponding provisions in the Code and imposes limitations on granting of bail in addition to the limitations under
the CrPC as expressly provided in Sub-section (2) of Section 37. These limitations on granting of bail specified in
Sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the CrPC and were enacted only
for this purpose; and they do not have the effect of excluding the applicability of the proviso to Sub-section (2) of
Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the accused
permissible during investigation.
15. In our opinion, in order to exclude the application of the proviso to Sub-section (2) of Section 167 Cr. P.C. in such
cases an express provision indicating the contrary intention was required or at least some provision from which such
a conclusion emerged by necessary implication. As shown by us, there is no such provision in the Narcotic Drugs &
Psychotropic Substances Act_ and the scheme of the Act indicates that the total period of custody of the accused
permissible during investigation is to be found in Section 167 Cr. P.C. which is expressly applied. The absence of
any provision inconsistent therewith in this Act is significant.
16. A comparison with the relevant provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for
short "the TADA Act") is useful. Section 20 therein provides for modified application of certain provisions of the CrPC.
Sub-section (4) of Section 20 specifies the modification with which Section 167 Cr. P.C. is applied, to a person
accused of an offence under the TADA Act. One of the modifications expressly made therein is by the provision for a
longer total period of permissible custody during investigation. A corresponding provision is absent in the Narcotic
Drugs & Psychotropic Substances Act_. Thereafter Sub-sections (8) and (9) of Section 20 are provisions
corresponding to Sub-sections (1) and (2) of Section 37 of the Narcotic Drugs & Psychotropic Substances Act_. This
similarity between the two Acts is striking and in this context the absence in the Narcotic Drugs & Psychotropic
Substances Act_ of a provision like Sub-section (4) of Section 20 of TADA Act assumes further significance and
supports the construction we have made of Section 37 of the Narcotic Drugs & Psychotropic Substances Act_. The
TADA Act is a stringent statute to meet an extraordinary situation as in the Narcotic Drugs & Psychotropic
Substances Act_. It is also significant that notwithstanding the substitution of Section 37 in the Narcotic Drugs &
Psychotropic Substances Act_ in its present form by Act 2 of 1989 subsequent to the enactment of the TADA Act,
there is nothing in Section 37 of the Narcotic Drugs & Psychotropic Substances Act_ similar to Sub-section (4) of
Section 20 of the TADA Act even though there is striking similarity of the provision with Sub-sections (8) and (9) of
Section 20 of the TADA Act. In our opinion, the legislative intent of not excluding the applicability of the proviso to
subsection (2) of Section 167 Cr.P.C. in cases of arrest made for commission of offences under the Narcotic Drugs &
Psychotropic Substances Act_, is quite evident.
17. It is settled that 'the court will have no power of remand of an accused to any custody unless the power is
conferred by law'. (See Natabar Panda Bisnu Charan Panda Batakrushna Parida Babaji Panda v. State of Orissa
[1975] Supp. SCR 137. The power must, therefore, be traced to some provision of the statute. There is clear mention
of Section 167 Cr. P.C. in the Narcotic Drugs & Psychotropic Substances Act_ for the exercise of this power.
Ordinarily, there must also be an outer limit prescribed by specification of the total period of permissible remand
during investigation. This too is provided in Section 167. To exclude merely this part of Section 167, an express
provision in the statute was necessary, assuming there could be conferment of power of remand unlimited in point of
time which, in substance, is the argument of the learned Additional Solicitor General. The effect of the proviso to Subsection
(2) of Section 167 Cr.P.C. was stated in Natabar Panda (supra), thus:
5
... The law as engrafted in proviso (a) to Sections 167(2) and Section 309(2) of the New Code confers the powers of
remand to jail custody during the pendency of the investigation only under the former and not under the latter. Section
309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded
....But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if
he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the
investigation may still be proceeding. In serious offences of criminal conspiracy - murders, dacoities, robberies by
inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various
parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature
seems to be to grant no discretion to the court and to make it obligatory for it to release the accused on bail. Of
course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be
so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the
court releasing him on bail, if it considers necessary so to do, to direct that such person be arrested and committed to
custody as provided in Sub-section (5) of section 437 occurring in Chapter XXXIII. It is also clear that after the taking
of the cognizance the power of remand is to be exercised under Section 309 of the New Code. But if it is not
possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the
accused will be entitled to be released on bail. Such a law may be a "paradise for the criminals," but surely it would
not be so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the
Legislature.
(emphasis supplied)
18. The learned Additional Solicitor General placed strong reliance on the decision of this Court in Narcotics Control
Bureau v. Kishan Lal and Ors. MANU/SC/0152/1991 : 1991CriLJ654 . The only thing decided in that case is that
the power of the High Court to grant bail under Section 439 of the CrPC is subject to the limitations contained in the
amended Section 37 of the Narcotic Drugs & Psychotropic Substances Act_ since those additional limitations are
applicable to the High Court also in the matter of granting bail. That is a different question. That decision does not,
therefore, answer the question which arises for consideration in the present case. No other decision of this Court has
been relied on by either side at the hearing before us to support a different view.
19. For the aforesaid reasons, these appeals are dismissed resulting in the interim orders made herein being
vacated. However, it is made clear that this decision will not affect any other order made in accordance with law
which may be in force permitting the continuance in detention of the respondents.
Shonee Kapoor
(Expert) 13 October 2011
hmmmm, took some time to understand.
Thanks to all the experts.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
