Full Judgment Text
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CASE NO.:
Appeal (crl.) 312 of 2004
PETITIONER:
Customs, New Delhi
RESPONDENT:
Ahmadalieva Nodira
DATE OF JUDGMENT: 11/03/2004
BENCH:
S. RAJENDRA BABU,ARIJIT PASAYAT & G.P. MATHUR
JUDGMENT:
J U D G M E N T
Arising out of SLP (Crl.) No.4169 of 2002
ARIJIT PASAYAT, J.
Leave granted.
Grant of bail to the respondent (hereinafter referred
to as ’the accused’) by a learned Single Judge, of the Delhi
High Court is questioned by the Customs authorities who had
purportedly recovered huge quantity of "Diazepam" - 5
mg." Tablets from her.
Factual background necessary to be noted is as follows:
On 4.4.2000 Customs authorities detained the
respondent-accused, a Uzbeck national who came to India to
do business in garments and was found carrying large
quantity of "Diazepam" - 5 mg. tablets". In the statement
recorded under Section 67 of the Narcotic Drugs and
Psychotropic Substance Act, 1985 (in short ’the NDPS Act’)
recovery of tablets was admitted by the accused. She was
arrested on 5.4.2000. An application for bail was file
before the Special Court, NDPS Act which was rejected taking
into account of the embargo placed under Section 37 of the
Act. The accused-respondent filed an application for bail
under Section 439 read with Section 482 of the Code of
Criminal Procedure, 1973 (in short ’the Code’). The stand
taken essentially was that he tablets seized were not
"psychotropic substance" within the definition of the term
in the Act. The application was opposed by the detaining
authorities on the ground that the article in question was
covered by Serial no. 43 of the Schedule to the Act, the
export production manufacture, possession etc. which are
prohibited under Section 8 of the Act. The High Court was
of the view that no definite material was placed to show the
materials allegedly recovered conforms to the chemical name
mentioned in the Item no.43 of the Schedule to the Act, and,
therefore, cannot be treated to be a psychotropic substance.
Report of the Central Control Laboratory which was placed
for consideration was held to be of no consequence.
Accordingly bail was granted to the respondent on her
furnishing personal bond for a sum of Rs.1,00,000/- with one
surety for the like amount to the satisfaction of the Trial
Court. It was further stipulated that the respondent-
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accused was not to leave the jurisdiction of the Trial Court
without prior permission from that Court.
In support of the appeal, Mr. K.K. Sood, learned
Additional Solicitor General, submitted that approach of the
High Court is clearly erroneous and overlooks the
restrictions and limitations imposed by Section 37 of the
NDPS Act. With reference to serial no.43 of the Schedule to
the Act it is submitted that not only the seized articles
conform to the description but also the laboratory reports
evidentiary value was totally overlooked. There is no
appearance for the respondent-accused in spite of the
notice.
It would be appropriate to take note of few provisions
which have relevance. Section 2(xxiii) defining
"psychotropic substances" and Section 37 dealing with bail
read as follows:
Section 2(xxiii)
"psychotropic substance" means any
substance, natural or synthetic, or any
natural material or any salt or preparation
of such substance or material included in the
list of psychotropic substances specified in
the Schedule.
Section 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 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 limitation 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."
As observed by this Court in Union of India v.
Thamisharasi & Ors. (JT 1995 (4) SC 253) 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
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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.
The limitations on granting of bail come in only when
the question of granting bail arises on merits. Apart from
the grant of opportunity to the public prosecutor, the other
twin conditions which really have relevance so far the
present accused-respondent is concerned, are (1) 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 for 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
Serial no.43 of the Schedule which reads as follows has not
been kept in view.
Sl. No. International Other Chemical name
non-proprietary non-proprietary
......
43 DIAZEPAM 7-Chloro-1, 3-dihydro-1-
methyl-5-phenyl-2H-1
4-benzondiazepin-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.
In the aforesaid background, this does not appear to be
a case where it could be reasonably believed that the
accused was not guilty of the alleged offence. Therefore,
the grant of bail to the accused was not called for. The
impugned order granting bail is set aside and the bail
granted is cancelled. The accused-respondent is directed to
surrender to custody forthwith. Additionally it shall be
open to the Trial Court to issue notice to the surety and in
case the accused does not surrender to custody, as directed,
to pass appropriate orders so far as the surety and the
amount of security are concerned. It is made clear that no
final opinion on the merit of the case has been expressed in
this judgment, and whatever has been stated is the
background of Section 37 of the Act for the purpose of bail.
The appeal is allowed.
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