Civil Procedure Code (CPC)

NDPS Act Bail

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  05 June 2008       Share Bookmark

Court :
Supreme Court of India
Brief :
We cannot accept the contention that in a matter involving seizure of commercial quantity of a substance prohibited by the NDPS Act when the Public Prosecutor appears on notice of the bail application he would be standing there as a mute spectator not opposing the bail application unless he was at the beck of the accused.
Citation :
not known
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1167 OF 2001


N.R. Mon ..Appellant


Versus


Md. Nasimuddin ..Respondent




JUDGMENT


Dr. ARIJIT PASAYAT, J.



1. Challenge in this appeal is to the judgment of the

learned Single Judge of the Gauhati High Court, Imphal

Bench, upholding the order passed by the Learned Special
Judge, NDPS, Manipur, Imphal, in Crl. Complaint case

no.32 of 2000, by which bail was granted to the respondent.



2. Background facts in a nutshell are as follows:



On 17.1.2000 the appellant received information in

writing from a casual source that a Tata truck bearing

registration No.MN-5113 carrying ganga would be proceeding

from Imphal area towards Guwahati in the early hours of

18.1.2000. It was immediately reported by the appellant to its

superior officer i.e. Superintendent, NCB, RU, Imphal, who

issued order to the appellant to take necessary action. The

appellant along with other members of staff of the NCB led by

the Superintend kept vigil along the Imphal-Ukhrul road and

started checking of vehicles. Around 7.00 a.m. on 18.1.2000

a Tata truck was seen approaching the road. The said vehicle

was intercepted and stopped by the appellant. The vehicle was

occupied by a driver (the respondent herein) and one Purna

Bahadur handyman. The vehicle, the accused and the
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handyman were brought to the Revenue complex for a

thorough checking. After following procedure laid down under

Section 50 of the Narcotic Drugs and Psychotropic Substance

Act, 1985 (in short `the Act'), the respondent and the driver

were asked whether they would like to be taken before the

Magistrate or the Gazetted Officer. During search 6 packets of

ganja in pressed form, from a specially constructed chamber

in the fuel tank were recovered. On weighing, the same was

found to be 163 kgs. in total. The representative samples were

taken and sent for analysis by the Chemical Examiner of the

Government of Assam, at the State Forensic Science

Laboratory in Guwahati. The voluntary statement of the

respondent was recorded in the presence of the witnesses on

18.1.2000. The respondent was put on arrest under Section

43(a) of the Act and case was registered for offence in relation

to possession punishable under Sections 20, 29 and 60 of the

Act. The Forensic Science Laboratory report was to the effect

that the sample was ganja. On 4.3.2000 an application for bail

was filed before the leaned Special Judge, NDPS, Manipur,

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Imphal, under Section 437 of the Code of Criminal Procedure,

1973 (in short `Cr.P.C.') and Section 37(b)(ii) of the said Act.

But without taking note of Section 37 of the Act, bail was

granted. The same was challenged before the High Court. By

the impugned order, the same was rejected. The High Court

noted that attendance of the accused can be secured by

means of bail bonds already signed. He may be allowed the

respondent to remain on bail in order to enable him to have

adequate consultation with the lawyer of his choice.



3. Learned counsel for the appellant submitted that the

parameters of Section 37 have not been kept in view by the

trial Court and High Court. Learned counsel for the

respondent supported the order.



4. Section 37 of the Act reads as follows:



"37. Offences to be cognizable and non-
bailable.



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(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974),
-

(a) Every offence punishable under this Act
shall he cognizable;


(b) No person accused of an [offences under
section 19 or section 24 or section 27A 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."




5. As rightly contended by learned counsel for the

appellant, the effect of Section 37 has not been noticed by

either the Trial Court or the High Court. The position relating

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to grant of bail in the background of Section 37 of the Act has

been considered by this Court in several cases.



6. In Union of India v. Gurcharan Singh (2003(11) SCC

764), it was noted as follows:


"5. On a bare perusal of the impugned
order of the High Court, we are satisfied that
the High Court has not borne in mind the
provisions of Section 37 of the Act before
releasing the accused-respondent on bail. We,
therefore, set aside the order and allow this
appeal. We direct that the trial be concluded
expeditiously."




7. In Collector of Customs, New Delhi v. Ahmadalieva

Nodira (2004 (3) SCC 549) it was noted at page 552 as follows:



"6. As observed by this Court in Union of India
v. Thamisharasi clause (b) of sub-section (1) of
Section 37 imposes limitations on granting of
bail in addition to those provided under the
Code. The two limitations are: (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.
7. The limitations on granting of bail come in
only when the question of granting bail arises
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on merits. Apart from the grant of opportunity
to the Public Prosecutor, the other twin
conditions which really have relevance so far
as the present accused-respondent is
concerned, are: the satisfaction of the court
that there are reasonable grounds for believing
that the accused is not guilty of the alleged
offence and that he is not likely to commit any
offence while on bail. The conditions are
cumulative and not alternative. The
satisfaction contemplated regarding the
accused being not guilty has to be based on
reasonable grounds. The expression
"reasonable grounds" means something more
than prima facie grounds. It contemplates
substantial probable causes for believing that
the accused is not guilty of the alleged offence.
The reasonable belief contemplated in the
provision requires existence of such facts and
circumstances as are sufficient in themselves
to justify satisfaction that the accused is not
guilty of the alleged offence. In the case at
hand the High Court seems to have completely
overlooked the underlying object of Section 37.
It did not take note of the confessional
statement recorded under Section 67 of the
Act. Description of drug at Serial No. 43 of the
Schedule which reads as follows has not been
kept in view:


"SL.No. International non- Other non- Chemical
proprietary names proprietary name
names

* * *
43 DIAZEPAM 7-Chloro-1, 3-dihydro-1,
methyl-5-phenyl-2H-1,
4-benzondiasepin-2-one


* * *"

In addition, the report of the Central Revenue
Control Laboratory was brought to the notice
of the High Court. The same was lightly
brushed aside without any justifiable reason.


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8. In Union of India v. Abdulla (2004 (13) SCC 504) it was

noted as follows:



"5. The respondent herein was charged of the
offences punishable under Sections
8/21/29/60 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 before the
Court of Special Judge, Lucknow. His
application for grant of bail was rejected by the
Special Judge by assigning reasons therefor.
Further application being made to the High
Court of Judicature at Allahabad, the High
Court without considering the mandatory
requirement of Section 37 of the Act and
without coming to the prima facie conclusion
that there was no material against the
respondent to convict him for the charges
alleged against him mechanically proceeded to
grant the bail. This Court in the case of
Supdt., Narcotics Control Bureau v. R. Paulsamy
(2000) 9 SCC 549, has held that in matters
arising out of the Narcotic Drugs and
Psychotropic Substances Act grant of bail is
controlled by Section 37 of the Act and it is
mandatory for the Court to hear the Public
Prosecutor and come to the prima facie
conclusion that there is no material to come to
the conclusion that the accused could be held
guilty of the charges levelled against him.
Since such a conclusion is not recorded by the
High Court and is not supported by reasons
we think the impugned order cannot be
sustained."



9. In Narcotics Control, Bureau v. Karma Phuntsok and

Ors. (2005 (12) SCC 480) it was noted as follow:


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"4. The respondents were convicted under
Section 29 read with Section 20(b)(ii)(c) of the
Narcotic Drugs and Psychotropic Substances
Act, 1985, (the NDPS Act) and sentenced to
rigorous imprisonment for 10 years and a fine
of Rs.1000. On appeals being filed, the learned
Judge suspended the sentence and the
respondents were enlarged on bail on
executing a personal bond for a sum of Rs.
50,000 with one surety for the like amount, to
the satisfaction of the trial court. We have
perused the order passed by the learned
Judge and we find that there is not even a
whisper about the condition contained in
Section 37 of the NDPS Act with regard to
enlarging of the accused on bail. Mr Jaspal
Singh, learned Senior Counsel appearing for
the respondents contended that the learned
Public Prosecutor did not oppose the bail as
contained in Section 37(1)(b)(ii) of the NDPS
Act. According to him, unless the Public
Prosecutor opposes the bail application,
Section 37 will not apply. Mr Singh seriously
contended that inasmuch as the appellant
have not put on record that the Public
Prosecutor had opposed the granting of bail it
must be presumed that this is an order
covered under Section 37(3) read with Section
439 CrPC. To say the least, the argument
appears to be baseless. We cannot accept the
contention that in a matter involving seizure of
commercial quantity of a substance prohibited
by the NDPS Act when the Public Prosecutor
appears on notice of the bail application he
would be standing there as a mute spectator
not opposing the bail application unless he
was at the beck of the accused. We find no
substance in this argument. In our view, the
very fact that the Public Prosecutor appeared
would suggest that he appeared to oppose the
bail application. In any event, the order of the
High Court does not suggest that the Public
Prosecutor had agreed for bail being granted.
In the aforesaid circumstances, we find no

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substance whatsoever in the contention raised
by Mr Singh."



10. Since the Trial Court and the High Court have not kept

these aspects in view, the order granting bail is clearly

unsustainable and is set aside. The appeal is allowed.




...............................
J.
(Dr. ARIJIT PASAYAT)


...............................
J.
(P. SATHASIVAM)
New Delhi,
May 16, 2008




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