Full Judgment Text
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CASE NO.:
Appeal (crl.) 907 of 2001
PETITIONER:
STATE OF MADHYA PRADESH
Vs.
RESPONDENT:
KAJAD
DATE OF JUDGMENT: 06/09/2001
BENCH:
M.B. Shah & R.P. Sethi.
JUDGMENT:
SETHI,J.
Leave granted.
Acting upon a definite information received by the Police
Station Jawad, District Neemuch, Madhya Pradesh, force was deployed
and the respondent-accused apprehended on the night of 24th March,
2000. After compliance of the mandatory provisions of Section 50 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
called "the Act"), opium weighing 7 kgs. was seized from the accused
which he had kept in his bag. After completing necessary procedural
formalities and getting the samples tested, a charge-sheet was
submitted against the accused in the competent court. Application for
bail moved by the accused was rejected by the trial court.
Dissatisfied with the rejection of his bail application, the
respondent-accused moved an application in the High Court which was
registered as Miscellaneous Criminal Case No.2052 of 2000. The said
application was rejected by the High Court vide order dated 5.6.2000.
Without mentioning any change in the circumstances, the respondent-
accused moved another application in the High Court in the month of
August, 2000 which was adjourned from time to time and ultimately
allowed vide the order impugned in this appeal.
Learned counsel appearing for the appelalnt-State has contended
that the High Court has committed an error of law by granting bail to
the respondent-accused ignoring the provisions of Section 37 of the
Act, though merely making a mention of it in the impugned order. It
is further contended that in the facts and circumstances of the case,
the High Court was not justified in granting the bail to the accused
in view of the dismissal of his earlier bail application and in the
absence of any change in the circumstances. The learned Judge
granting the bail is stated to have adopted a casual approach in
dealing with a heinous crime committed under the Act. It is submitted
that the order granting the bail amounts to reviewing the earlier
order which is not permissible in criminal cases.
It is not disputed that the accused was apprehended and charged
for the commission of an offence punishable under Section 18 of the
Act which is punishable with rigorous imprisonment for a term, not
less than 10 years but which may extend to 20 years and is also liable
to a fine of not less than one lakh rupees.
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Section 37 of the Act provides that the offences under the Act
shall be cognizable and non-bailable. It reads:
"Offences to be cognizable and non-bailable- (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 -
(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
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 or
any other law for the time being in force, or granting of
bail."
The purpose for which the Act was enacted and the menace of drug
trafficking which intends to curtail is evident from its scheme. A
perusal of Section 37 of the Act leaves no doubt in the mind of the
court that a person accused of an offence, punishable for a term of
imprisonment of five years or more, shall generally be not released on
bail. Negation of bail is the rule and its grant and exception under
sub clause (ii) of clause (b) of Section 37(1). For granting the bail
the court must, on the basis of the record produced before it, be
satisfied that there are reasonable grounds for believing that the
accused is not guilty of the offences with which he is charged and
further that he is not likely to commit any offence while on bail. It
has further to be noticed that the conditions for granting the bail,
specified in clause (b) of sub-section (1) of Section 37 are in
addition to the limitations provided under the Code of Criminal
Procedure or any other law for the time being in force regulating the
grant of bail. Liberal approach in the matter of bail under the Act is
uncalled for.
In Maktool Singh Vs. State of Punjab (1999 (3) SCC 321) this
Court considered the scope of Section 37 along with the scheme of the
Act and held:
"The only offences exempted from the purview of the
aforesaid rigours on the bail provisions are those under
Sections 26 and 27 of the Act. The former is punishable
upto a maximum imprisonment for three years and the latter
upto a maximum imprisonment for one year. For all other
offences, the court’s power to release an accused on bail
during the period before conviction has been thus
drastically curtailed by providing that if the Public
Prosecutor opposes the bail application, no accused shall be
released on bail, unless the court is satisfied that there
are reasonable grounds for believing that he is not guilty
of such offence."
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To the same effect are the judgments of this Court in Intelligence
Officer, Narcotics Control Bureau Vs. Sambhu Sonkar and Anr. (JT
2001(2) SC 372) and Smt. D. Sarojini Vs. State of A.P. (2001(4)
Supreme 179).
In the instant case, the learned Single Judge of the High Court
has granted the bail on his own sense of observation regarding the
course of conduct adopted by the accused at the time of his
interception and arrest. Merely because the accused was found to be
continuing to hold bag containing opium during the period, the raiding
party searched him in accordance with the provisions of the Act, the
learned Judge was not justified to conclude "it is by itself
unnatural". How the learned Judge concluded that the conduct of the
accused or raiding party were unnatural is not discernible from the
impugned order. A person, apprehended by a raiding party, who is
sought to be searched is supposed to hold the goods in his possession
unless he opts to flee from the place of occurrence or advised to
throw the container in which the offending substance is contained.
Section 37 of the Act has been referred in the impugned order not for
the purposes of showing of its compliance but to justify the passing
of an apparently wrong order. If, besides referring to Section 37 of
the Act, the learned Judge would have referred to its provisions, he
would not have fallen a prey to the ulterior designs of the
respondent-accused.
It has further to be noted that the factum of the rejection of
his earlier bail application bearing Misc. case No. 2052 of 2000 on
5.6.2000 has not been denied by the respondent. It is true that
successive bail applications are permissible under the changed
circumstances. But without the change in the circumstances the second
application would be deemed to be seeking review of the earlier
judgment which is not permissible under criminal law as has been held
by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa & Anr. [2001
(1) SCC 169] and various other judgments.
We are satisfied that the impugned order having been passed in
violation of the provisions of the Act by ignoring the mandatory
requirements of Section 37 and the conditions governing the grant of
bail under the Code of Criminal Procedure and is thus not sustainable.
Accordingly, the appeal is allowed by setting aside the order
impugned. The respondent-accused shall surrender and his bail bonds
are cancelled. He shall be taken into custody during the trial of the
offence with which he has been charged.
......................J.
(M.B. SHAH)
......................J.
(R.P. SETHI)
SEPTEMBER 6, 2001