Crl. Revn. Petn. (SH) No. 16 of 2012

31st May, 2013

Petitioner Counsel: Mrs. T. YANGI
Respondent Counsel: Mr. S. CHAKRAVARTY

Cases Cited:
Union of India Vs. Ram Samujh & Anr., 1994 (4) 134 (SC) [Para 8]
Union of India Vs. Thamisharasi & Ors., Crimes 1995 Vol. II (SC) [Para 8]

JUDGMENT

JUDGMENT :- The brief fact of the case is that, the accused namely; Gideon Syiem was arrested on 24.08.11 on the charge of possessing narcotic drugs and psychotropic substances by the Customs authorities. It appears that another accused who is a Nigerian resident is also involved in this case. On 14.12.11, the Special Judge vide order dated 14.12.11 granted bail in favour of the accused Gideon Syiem on the ground that the other accused is yet to be apprehended and his arrest is time consuming.

2. Being aggrieved by the said impugned order, this instant revision petition has been moved by the Union of India under Section 439(2) and Section 482 CrPC.

3. Mrs. T Yangi, the learned counsel appearing for on behalf of the petitioner submits that, while granting bail, the Court has totally ignored the mandatory provision of Section 37 of the NDPS Act and has also failed to apply judicial mind. Hence, the impugned order dated 14.12.11 is bad in law, so bail may be cancelled.

4. On the other hand Mr. S Chakravarty, the learned counsel for respondent submits that the learned Court below has rightly passed the order and there is nothing wrong in the order, so the impugned order dated 14.12.11 may not be interfered with.

5. I have perused the impugned order dated 14.12.11 passed by the learned Court below. On perusal of the order, it appears that the Court has granted bail on the ground that the other Nigerian accused when will be arrested and produced before the Court is uncertain, so it is time consuming and the case cannot proceed in the absence of one of the accused.

6. After perusal of the impugned order, I would like to remind the Court below that while granting bail under NDPS Act, the Court is bound to regulate under Section 37 of the Act. Section 37 of the NDPS Act is reproduced herein below:

"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 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."

7. On bare perusal of the said Section referred above, it is clearly understood that no bail can be granted or considered unless Public Prosecutor has been given an opportunity to oppose the bail application. Secondly, Court will have to satisfy that there are reasonable grounds for believing that accused is not guilty of such offence and that the accused will not commit such offence, if bail is granted.

8. So, Section-37 of the NDPS Act entrusts secret/great responsibility upon the Court, it has not empowered the Court to grant bail without sufficient reason of innocence of the accused. Secondly, Court must satisfy that, he will not indulge such activities during bail. The impugned order dated 14.12.11 is silent about satisfaction of the Court as required under Section 37 of the NDPS Act. Crimes 1994 (4) 134 (SC) Union of India vrs Ram Samujh & Anr. (Para 5,6&7) is reproduced below :

"The Jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where 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. It is the mandate of the legislature which is required to be followed.

It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,

i) there are reasonable grounds for believing that accused is not guilty of such offence; and

ii) that he is not likely to commit while on bail."

Crimes 1995 Vol. II (SC) Union of India vrs Thamisharasi & Ors. (Para- 11) is reproduced below :

"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 N. D. P. S. 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 N. D. P. S. 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 N. D. P.S. Act more stringent."

9. Though the learned Court has noted Section-37 but has totally ignored the contents of the Section-37 of the NDPS Act. Under NDPS Act, granting bail is an exception and denial is rule and no Court can grant bail over-riding the provision of Section-37 of the NDPS Act. It is also not correct that the case cannot proceed without one of the accused. Section 317 sub-section (2) CrPC made clear provision that case can be split and tried separately if circumstances demand so.

10. Therefore, I find that the impugned order dated 14.12.13 is contrary to the provision of Section-37 of NDPS Act. Therefore, it is bad in law, as such, it has no life to survive and needs to be cancelled.

11. Hence by invoking the power under Section 439 (2) CrPC, I hereby cancelled the impugned order dated 14.12.11 and the accused person, Gideon Syiem is directed to surrender before the Special Judge within 3 days. The Special Judge is further directed to take him in custody and to proceed with the trial, if the case has already been charge-sheeted. However, the Court should not be influenced by this order during trial and to proceed with the trial independently.

12. With these observations and directions, the instant revision petition is allowed and stands disposed of.

13. Registry is directed to roll back the Lower Court case record along with a copy of this judgment and order immediately.

13. Registry is directed to roll back the Lower Court case record along with a copy of this judgment and order immediately.

Petition allowed.