1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION ( MAIN ) NO. 18 OF 2009 AND CRIMINAL APPLICATION (MAIN) NO. 139 OF 2009 Union of India Through Superintendent of Customs & Central Excise, ( Narcotic Cell), Goa. ... Applicant V e r s u s 1. Mr. Jayesh Anant Dhuri H.No. 110 Near Old Syndicate Bank Palolem, Canancona, Goa. 2. State of Goa, Through the Public Prosecutor Panaji Goa. ... Respondents Shri J. Vaz, Central Government Standing Counsel for the Applicant Shri S. K. Kakodkar, Senior Advocate with Shri R. Rivankar, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 8th MAY, 2009. 2 ORAL ORDER : These petitions are filed under Section 482 of the Code ( Code of Criminal Procedure, 1973 ) and can be considered as filed by the complainant who is the Superintendent of Customs and Central Excise who in terms of Section 53 of the Act ( Narcotic Drugs and Psychotropic Substances Act, 1985 ) has been conferred with the powers of an officer incharge of the Police Station, by virtue of Notification published on Gazette of India dated 14.11.1985 and challenge two orders dated 22.12.2008 and 27.2.2009 of the learned Special Judge ( NDPS Court, Mapusa ). 2. By the first order, the respondent – accused herein was admitted to anticipatory bail with conditions, amongst others, that the respondent should appear and co-operate with the Officers of Customs and Central Excise as and when called to do so. By the second order learned Special Judge has refused to cancel the anticipatory bail granted to the respondent - accused. That order came to be passed pursuant to the order of this Court dated 16.2.2009 in Criminal Application ( Main ) NO. 18/2009 after it was brought to the notice of this Court that there was a breach of the order dated 22.12.2008. Liberty was given to the said complainant to apply to the NDPS Court for cancellation 3 of the same. It was observed that on the first count i.e., whether the respondent could be admitted to anticipatory bail in the facts and circumstances of the case, would be examined by this Court. 3. These petitions can be conveniently disposed of under Section 439(2) of the Code. They have been filed under Section 482 of the Code under a wrong notion of law. The law on this subject is well settled to which reference will be made a little later. 4. Some facts are required to be stated to dispose of these petitions. Rajesh and Jayesh Anant Dhuri ( accused, for short ) are brothers. Rajesh Anant Dhuri was arrested on 27.11.2008 for having found in possession of 1.010 kg of Hashish and his statement under Section 67 of the Act was recorded on the next date. On the same day, when the said accused Rajesh A. Dhuri was being brought from Canacona to Panaji, the said Rajesh received a call from his brother Jayesh A.Dhuri – accused and that call was transferred to the complainant and and after Jayesh had identified himself to the complainant, an offer of Rs. 5,00,000/- was made for the release of the said Rajesh A. Dhuri. The complainant then filed a complaint before the CBI and 4 pursuant to the said complaint and on the same day Diwakar Pagi and Ravi Narayan Pagi were arrested when they came with Rs.2,00,000/- to be paid to the complainant, as initial payment, towards the said sum of Rs. 5,00,000/-. As per the complainant the said Rajesh A. Dhuri in his said statement recorded on 28.11.2008 has admitted that his brother Jayesh A. Dhuri is an accomplice and the said Diwakar Pagi, who is the Chairman of Canacona Municipal Council, took care of the complaints lodged against him and the said brother Jayesh A. Dhuri ( accused ) with the authorities and they would help him during the elections by giving logistical as well as monetary support as and when required. A perusal of the said statement of the said Rajesh A. Dhuri shows that the said Rajesh A. Dhuri has stated that he and his brother were selling narcotics drugs to foreigners who go on dolphin tours. The said statement also shows that both of them shared the profits and part of it they invested in their business, etc. 5. The said Rajesh A. Dhuri appears to have filed an application for bail before the learned Special Judge and in that application it appears that the complainant had stated that Jayesh A.Dhuri ( accused ) was an accomplice of Rajesh A. Dhuri and was at large, which made the present accused – Jayesh A. 5 Dhuri to file an anticipatory bail application before the learned Special Judge on 18.12.2008 and which was fixed for reply and arguments on 22.12.2008 and disposed of by that Court on the same date. 6. Criminal Application ( Main ) No. 18/2009 for cancellation of anticipatory bail was filed on 9.1.2009 and thereafter the accused surrendered on 12.1.2009 before the Special Judge ( under P.C. Act, 1988 ) and was remanded to judicial custody and then to CBI ( Central Bureau of Investigation ) custody in connection with the offence under Section 12 of Prevention of Corruption Act,1988 and was admitted to bail on 3.2.2009 and after the second order dated 27.2.2009 of the learned Special Judge, a statement of the accused under Section 67 of the Act has been recorded on 25.3.2009. 7. That the petitions can be considered under Section 439(2) of the Code is a matter which is no longer res integra. In Criminal Revision Application No. 26/2005 and others in the case of Satish Dhond and others by judgment dated 13.1.2006 this Court had occasion to consider with reference to several pronouncements of the Apex Court that bail once granted 6 could be cancelled in three broad situations namely (1) when the grant of bail is unjustified, arbitrary or otherwise vitiated by serious infirmity or wrong exercise of discretion; (2) post bail conduct of the accused being not conducive for further investigations and/or a fair trial; and (3) change of circumstances which would require the accused to be in custody. As regards the situation (1) reference was made to the case of Puram v. Rambilas and another [(2001) 6 SCC 338] wherein the Apex Court had stated that one of the grounds for cancellation of bail would be where ignoring material and evidence on record, a perverse order of granting bail was passed. Such an order would be against the principles of law and interest of justice would also require that such perverse order be set aside and bail be cancelled. The same view is followed in State of Gujarat Vs. Salimbai A.S. [(2003) 8 SCC 50] and by this Court in Criminal Misc. Application No. 157/2004 in the case of State V/s Digambar Salkar. Reference was also made to Gurcharan Singh and others V/s. State ( Delhi Administration ) [(1978) 1 SCC 118 ] wherein the Apex Court had stated that under Section 439(2) the High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Sessions to custody, if it thinks appropriate to do so. The Apex Court had however noted that the Court of Sessions cannot cancel a bail which has 7 already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If a Court of Sessions has admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up, except those which are already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Sessions vis-a-vis the High Court. 8. This Court in the said decision dated 13.1.2006 further stated as follows :- “In the case of Puran V/s Rambilas and another ( supra ) the Supreme Court has approved the observations in the case of Gurcharan Singh and others (supra ) and has stated that the concept of cancelling the bail on the ground that 8 the accused has misconducted himself or because of some new facts requiring such cancellation is different from the concept of setting aside an order which is illegal or perverse. In fact, the case of Puran V/s Rambilas and another (supra ) is a clear authority to consider the powers of cancellation of bail in three situations or categories enumerated herein above. However, I must hasten to add that the remedy against an unjustified, arbitrary or perverse order in situation (1) would lie to the High Court and not to the Court of Sessions which granted the bail while in situations (2) and (3) the remedy would be to the very Court of Sessions which granted bail”. 9. This Court in State of Maharashtra V/s Sanjay Moreshwar Damle and others (1999) 3 Mh.LJ 881 has held referring to Gurcharan Singh and others that the procedure laid down clearly shows that the aggrieved party can move for cancellation of bail granted by the Court of Sessions under Section 439(2) of the Code on the same facts and circumstances as existed at the time of passing of the order of bail as well as on the basis of new circumstances, such as, breach of condition, tempering of evidence, misuse of liberty, etc. However, the forum, aggrieved party will have to approach, will be different depending on the basis on which the 9 cancellation of bail is sought. If cancellation is sought on the same facts and circumstances, then State will have to move the High Court and if it is on the basis of new facts and circumstances, then State will have to move the same Court, which granted the bail. 10. Both the orders of the learned Special Judge can be immediately faulted, though the learned Senior Counsel is right that the petitions have to be considered on the basis of materials which were then available before the learned Special Judge. As submitted by learned Public Prosecutor the first order was passed without having any regard to the provision of Section 37 of the Act, which reads as follows :- “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 commerical quantity ) shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose 10 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 ). 11. Section 37 of the Act has been enacted by the legislature with a view to provide total check and to decrease the crime of drugs and psychotropic substances trafficking which is ever increasing in the country, and particularly, if newspaper reports are any indication, in this State. That being the underlying object of the Act, Section 37 of the Act, in negative terms limits the applicability of the provisions of the Criminal Procedure Code regarding bail and one of the requirements is that the Public Prosecutor is to be heard i.e. given an opportunity to oppose the application. The other requirement is that the Court is called upon to satisfy itself that there are 11 reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail. 12. These are but conditions precedent to be complied with before a person is admitted to bail. In other words,it is for the accused to show that prima facie he is not guilty. A bare reading of Section 37 of the Act shows that the Court is required to adopt a negative approach and turn positive if the conditions precedent are satisfied. There is no dispute that the Public Prosecutor was required to be heard before the accused was admitted to anticipatory bail but the contention on behalf of the accused is that the bail application was decided after submission was made by the complainant that the reply filed could be considered and the bail application decided. The learned Special Judge was not bound to wait for the Public Prosecutor. 13. On the other hand, the contention made on behalf of the complainant, is that the Public Prosecutor was not given an opportunity to be heard and the application was decided without giving such opportunity. Section 37 of the Act starts with a non obstante clause which restricts the applicability of the Code to the matters enumerated therein. Clause (b) of sub 12 Section (1) of Section 37 unequivocally restricts bail for certain offences mentioned therein, unless conditions laid down in sub clauses (i) and (ii) are complied with. Sub section (2) proclaims that these limitations are in addition to those others provided under the Code or any other law. 14. The effect of the non obstante clause in Section 37 of the Act is that the limitations provided therein have got to be read into Section 438 of the Code as well, at the time of granting anticipatory bail. In other words the policy behind Section 37 of the Act would have to be borne in mind by the Court while exercising its power to grant anticipatory bail. This is the view held by a three Judge Bench of the Apex Court in Balchand Jain V/s State of M.P. ( 1976(4) SCC 572) whilst interpreting analogous provisions, and followed in NCB V/s Kishan Lal ( 1991(1) SCC 705 another Full Bench decision of the Apex Court. In Balchand Jain ( Supra ) the Apex Court observed : " If these are the conditions provided by the Rule making authority for releasing on a bail a person arrested on an accusation of having committed contravention of any rule or order made under the Rules, it must follow a fortiori that the same conditions must provide 13 the guidelines while exercising the power to grant anticipatory bail to a person apprehending arrest on such accusation, though they would not be strictly applicable". " That in cases covered by Rule 184 of the Rules the Court exercising power under Section 436 or Section 438 of the Code has got to comply with the conditions mentioned in clauses (a) and (b) of the Rule 184 and only after the Court has complied with those conditions that an order under any of these sections of the Code in respect of such offences could be passed". 15. The Apex Court in Collector of Customs, New Delhi V/s Ahmadalieva Nodira [ (2004) 3 SCC 549 ] has stated that clause (b) of sub Section (1) of Section 37 imposes limitation on granting of bail in addition to those provided under the Code. 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 said conditions are stated to be cumulative and not alternative. It is stated that the expression “reasonable grounds” means something more than 14 prima facie grounds that it contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The same is viewed expressed earlier in the case of State of M.P. V/s Kajad ( 2001) 7 SCC 673, wherein it was further observed that negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). In the case of Union of India V/s Ram Samujh and another, (1999) 9 SCC 429, the Apex Court observed, referring to Section 37 of the Act, that it is to be borne in mind that the legislative mandate has to be adhered to and followed. In a murder case the 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 deathblow to a number of innocent young victims who are vulnerable; it causes deleterious effects and a 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. 16. As already stated, there is no dispute that the Public Prosecutor was required to be heard and would be required to be heard even in the matter of 15 an application for anticipatory bail in the light of the aforesaid judgments of the Apex Court. The application filed by the accused, filed on 18.12.2008 came for the first time for hearing on 22.12.2008 and in the morning session and as the Public Prosecutor was not present, on behalf of the complainant, it appears that it was adjourned to afternoon session after the complainant informed the learned Special Judge that the complainant's Counsel was unable to appear. At 4.00 p.m., on that day, when the application was again taken up for consideration, it was represented to the Court that the complainant's Counsel Shri Faria was unable to appear and the complainant further told the Court that his reply could be considered as arguments. It is quite possible that the complainant was compelled to make said submission because Shri Faria, the Counsel of the complainant, was unable to appear even at 4.00 p.m., on that day, but one fails to understand as to why there was tearing hurry to dispose of the said application at the very first hearing without waiting further for the Public Prosecutor to be heard in the matter. Hearing of the Public Prosecutor and giving him an opportunity to oppose the application is one of mandatory requirements of Section 37 of the Act. Any opportunity to oppose had to be adequate and reasonable. Disposing of an application without hearing the Public Prosecutor and without giving the Public Prosecutor an 16 adequate opportunity to oppose the application, any order passed thereon has got to be considered as arbitrary and illegal and therefore needs to be set aside. On this ground alone the first impugned order deserves to be set aside. In Union of India V/s Abdulla [( 2004) 13 SCC 504] it was argued that Section 37 of the Act was mandatory and the learned Judge first ought to have heard the Public Prosecutor on the bail application and next come to the conclusion that prima facie there was no case made out by the prosecution before granting bail. It was next contended that the High Court without applying its mind either to the facts of the case or Section 37 granted bail without even recording the mandatory satisfaction as to the existence of a prima facie case or not. These contentions were accepted and since the learned Judge had not noticed mandatory requirements of Section 37 of the Act, the appeal was allowed and case was remanded back to the High Court. In my view, and as already stated, in terms of Section 37(1)(i) the Public Prosecutor ought to have been given opportunity to oppose the application and that is irrespective of any submission which might have been made by the complainant and any opportunity to be given ought to be adequate. In the case at hand, no such opportunity was at all given to the Public Prosecutor to oppose the application and learned Special Judge decided the application in a tearing hurry without 17 giving any opportunity whatsoever and on that count alone the impugned order deserves to be set aside. 17. The second impugned order also needs to be set aside as it is contrary to the law laid down by this Court and followed in the case of Satish Dhond and others ( Supra ). The main submission of the learned Senior Counsel which was made before the learned Special Judge and accepted by him and which is repeated before this Court is that the order of anticipatory bail along with conditions imposed therein, would come in operation only after the arrest of the person admitted to anticipatory bail and since the accused was not arrested pursuant to the order dated 22.12.2008, the bail could not be cancelled. Indeed it was contended by the learned Senior Counsel before Special Judge and now before this Court that the application for cancellation was not tenable as the accused was not arrested and was not released on bail as per the orders of the Court and therefore what was essential was that the Investigating Agency had to arrest such person and release him on bail as per the orders and only if such person failed to comply with the conditions imposed on him then only it would open to file the application for cancellation of bail. This submission was accepted by the 18 learned Special Judge but it cannot be accepted in the light of the decision of this Court in the case of State of Maharashtra V/s Vishwas Shripati Patil and others ( 1978 Cri. L.J. 1403 ) which was followed in the case of Satish Dhond and others. The learned Division Bench has held as follows :- “The Chapter postulates two types of release on bail, viz., release after arrest and release from arrest; the first wherein the arrest is accomplished while in the second it is in anticipation. The words “released on bail” clearly cover both types of cases. Particularly under the provisions of Section 438 and orders made thereunder in favour of the person accused of an offence admitting him to anticipatory bail; nonetheless such a person equally answers the description of a person who had been released on bail in the sense admitted to bail by Court. The provisions of sub-sec. (2) of Section 439 are intended clearly to recall, revoke or cancel the orders as to bail and those are operative upon the purposes of directing arrest of persons and committing them to custody. Therefore, in all cases, wherever the competent authority or Court makes an order admitting persons accused of offences to bail, the provisions of this sub-section are clearly attracted. Moreover, the phraseology available in the sub-section using the words like “has been released on bail” will have to be understood in the context of orders that are liable to be made and are made under the provisions of the entire Chapter. ....” 19 “Thus, the person who has been admitted to the anticipatory bail is really a person who answers the terminology in the sense that he has been released on bail under this Chapter”. 18. The