Full Judgment Text
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CASE NO.:
Appeal (crl.) 349 of 2004
PETITIONER:
Narcotics Control Bureau
RESPONDENT:
Dilip Pralhad Namade
DATE OF JUDGMENT: 18/03/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
O R D E R
(Arising out of SLP (Crl.) No. 2783/2003)
ARIJIT PASAYAT,J
Leave granted.
Grant of bail to the respondent by a learned Single
judge of Bombay High Court is questioned by the Narcotics
Control Bureau (in short the "NCB"). The respondent is
facing trial for alleged commission of offences punishable
under Section 29 read with Sections 8(c),22,28 and 30 of the
Narcotics Drugs and Psychotropic Substances Act, 1985 (for
short the ’NDPS Act’). The allegations against the
respondent Dilip Pralhad Namade (hereinafter referred to as
‘the accused’) were that he was involved in the
manufacturing of mandrax tablets and he is the person who
has supplied the technical know how of preparation for the
tablets.
Officers of the appellant- Bureau , Mumbai Zonal
Unit, got information that one Suresh Faturmal Jain was
travelling in a red Ford Escort car and was carrying 20,000
Mandrax Tablets to be delivered to two persons at a
particular place. Acting on the information, two officers
of the Bureau went to the vicinity of the place where the
tablets were to be delivered. Two persons were called to
act as Panchas. They found that there were three persons
travelling in the car. The officers searched the car and
arrested all the three occupants. One of them were Suresh
Futormal Jain and others were Karakutti Karan Anthony and
Rajeev Shirook. From the bags, 20 Kgm. of Mandrax Tablets
were recovered. Statement of all the three accused persons
were recorded and on the basis of certain facts disclosed in
the statements, a search was taken up by the Officers and
650 Kgs. of chemicals used for manufacturing Mandrax
tablets were recovered. During the course of investigation,
other persons were also searched and enquiries were made.
The case against the respondent-accused was that he was
instrumental in helping the other accused persons in setting
up a plant and machinery for manufacture of Methaqualone
Powder and Mandrax Tablets. With the help of others, the
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respondent alongwith accused No. 10 manufactured eleven
lakhs Mandrax tablets on three occasions for other accused
persons. He had also visited the factory of accused No. 13
for the purpose of procurement of the Mandrax Tableting
Machineries etc.
A bail application was filed by the respondent-
accused, which was rejected on 27.8.2001 by the Special
judge Subsequently an application was filed on 21.6.2002
before the Special Judge for direction to the prosecuting
agency to supply copies of certain documents purported to
have been recovered from his house. The Special Judge
directed the prosecution to furnish the copies.
Subsequently an application for bail was filed by the
respondent-accused before the Bombay High Court on
27.8.2002. By the Impugned order dated 19.12.2002 the High
Court granted bail to the respondent-accused primarily on
the term that the direction given by the Special Judge for
supply of copies of documents was not complied with, though
the bail application was opposed.
In support of the appeal Mr. L. Nageshwara Rao, learned
Additional Solicitor General submitted that while granting
bail the provisions of Section 37 of the Act were not kept
in view. There is a prohibition on the grant of bail in
terms of Section 37 of the NDPS Act and only under the
specified conditions bail can be granted. Non-supply of
documents pursuant to the court’s order is not one of the
grounds on which bail can be granted. In fact the High
Court recorded a wrong conclusion by observing that the
order was not complied with and there was also no challenge
to the order directing supply of documents. As a matter of
fact claiming privilege the Bureau had filed an application
before the Special Judge clearly indicating that it would
not be in the interest of justice to grant copies, and
prayer was made to the Court that instead of granting copies
the accused, if he so desires, could inspect the documents
in presence of officials of the Bureau. That offer was not
accepted by the accused respondent. The Bureau wanted to
avoid the possibility of any tampering with the original
documents and also further dissemination of the formula in
public and that is why inspection, as indicated above was
offered. The accused having not chosen to inspect the
documents could not have made a grievance about non-supply
of copies or alleged non-compliance of the directions of
the learned Special Judge.
Per contra Mr. E.C. Agrarwala, learned counsel
appearing for the respondent-accused submitted that stand
taken by the appellant-Bureau is nothing but a camouflage to
hide its inaction and non-compliance with the orders of the
Special Judge. There was a specific direction for supply of
copies and there is no ground indicated to substantiate the
claim of privilege. In any event, the order granting bail
was passed on 19.12.2002 and this Court was approached in
May 2003 and in the meantime nearly 1= years have elapsed
without any allegations of the respondent-accused having
misused his liberties. He submitted that in two cases i.e.
SLP (Crl.) No. 1136/2002
( N.C.B. vs. Amar Pal Singh ) and SLP(Crl.) No. 434/2003,
( N.C.B. vs. Smt. Hamida Sayyed Ali Shaikh) this Court did
not interfere with order granting bail on the sole ground
of long passage of time. Therefore, it is submitted that
liberty granted to the respondent-accused should not be
withdrawn.
It would be appropriate to take note of few provisions
which have relevance i.e. Section 2(xxiii) defining
"psychotropic substances", and Section 37 dealing with
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bail. They 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
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
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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 and he is not likely to commit any offence
while on bail. This nature of embargo seems to have been
envisaged keeping in view the deleterious nature of the
offence, necessitates of public interest and the normal
tendencies of the persons involved in such network to pursue
their activities with greater vigour and make hay when, at
large. In the case at hand the High Court seems to have
completely overlooked the underlying object of Section 37
and transgressed the limitations statutorily imposed in
allowing bail. It did not take note of the confessional
statement recorded under Section 67 of the Act.
A bare reading of the impugned judgment shows that the
scope and ambit of Section 37 of the NDPS Act was not kept
in view by the High Court. Mere non-compliance of the order
passed for supply of copies, if any, cannot as in the
instant case entitle an accused to get bail notwithstanding
prohibitions contained in Section 37.
The circumstances under which the bail can be granted
in the background of Section 37 have been indicated above.
The case is not one to which the exceptions provided in
Section 37 can be applied.
Coming to the plea reqarding long passage of time it is
to be noted that the two orders passed by this Court in SLP
(crl.) Nos. 1136/2002 and 434/2003 referred to above do not
lay down any principle of law of invariable nature to be
universally applied. Furthermore, disposal of SLP against a
judgment of the High Court does not mean that the said
judgment is affirmed by such dismissal. The order passed in
any SLP at threshold without detailed reasons does not
constitute any declaration of law or constitute a binding
precedent. (see Union of India and others vs. Jaipal Singh
2003(7) Supreme 676). This court cannot and does not
reverse or modify the decree or order appealed against while
deciding the petition for special leave to appeal and that
too when the SLP was being dismissed. What is impugned
before this Court can be reversed or modified only after
granting leave and then assuming appellate jurisdiction over
it. If the order impugned before this Court cannot be
reversed or modified at the SLP stage obviously that order
cannot also be affirmed at the SLP stage (see Kunhayammed
and others vs. State of Kerala and another (2000)6 SCC 359)
and Sri Ramnik Vallabhdas Madvane and Ors. vs. Taraben
Pravinlal Madhvani 2003 (8) Supreme 208).
The inevitable conclusion is that the judgment has no
legal sanction. We, therefore, set aside the impugned
judgment of the High Court granting bail to the respondent.
The respondent-accused is directed to surrender to custody
forthwith.
Appeal is allowed.