1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NOS. 67, 68 AND 75 OF 2010 CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NO.67 OF 2010 Mr. Sandeep Parab, Age 30 years, Indian National, R/o H.No.155, K-2, Dhuler, Mapusa, Goa. Presently in Police Custody, CID/CB Police Station, Dona Paula-Goa. ... Applicant versus State of Goa, as represented by Officer In Charge, CID/CB Police Station, Dona Paula-Goa. ... Respondent CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NO. 68 OF 2010 Mr. Hussain Shaik, Age 30 years, Indian National, R/o H. No.155, K-2, Dhuler, Mapusa, Goa. Presently in Police Custody, CID/CB Police Station, Dona Paula-Goa. ... Applicant versus State of Goa, as represented by Officer In Charge, CID/CB Police Station, Dona Paula-Goa. ... Respondent 2 CRIMINAL MISCELLANEOUS APPLICATION(BAIL) NO. 75 OF 2010 Mr. Ramchandra S. Kankonkar, Age 35, Indian National, R/o H. No.455, Voilem Bhat, Merces, Goa. Presently lodged at Lock-up of CID/CB Police Station, Dona-Paula Goa. (As Rep. by his next friend, Miss Nilima Shrikant Kankonkar, Aged 29 years, R/o H. No.455, Voilem Bhat, Merces, Goa). ... Applicant versus 1. State of Goa, As represented by Officer in Chafrge, CID/CB Police Station, Dona Paula-Goa. 2. The Public Prosecutor, Panaji, Goa. ... Respondents Shri J. P. D'Souza, Advocate for the Applicants. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 7TH APRIL, 2010. JUDGMENT A conflict of jurisdiction wrongly perceived between Special Courts established under different enactments has compelled the Applicants to 3 approach this Court, for bail. 2. Heard Shri J. P. D'Souza, the learned Counsel on behalf of the Applicants/Accused and Shri C. A. Ferreira, the learned Public Prosecutor on behalf of the Respondent. 3. The applicants are involved in Crime No.16 of 2010 which includes offences punishable under three different enactments:- Under Sections 380, 409 and 120(b) IPC; under Sections 7, 11 and 12 of the Prevention of Corruption Act, 1988(P. C. Act, for short) and under Sections 28, 29, 30, 31 and 59(2)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985(N.D.P.S Act, for short). 4. The applications before this Court came to be filed after the Special Court at Mapusa constituted under N.D.P.S. Act by Orders dated 25-3-2010 came to the conclusion that she had no jurisdiction to decide their applications for bail and this conclusion was essentially based on the wording of Section 4 of the P. C. Act which provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, 2 of 1974, or any other law for the time being in force the offences specified in sub-section(1) of Section 3 shall be tried by the Special Judge only(appointed under the P. C. Act). 4 4. The applicants have not challenged the said Order of the learned Special Court at Mapusa, and the main contention urged on behalf of the applicants, is that they are entitled to bail because their subsequent remand by the Special Judge under the P. C. Act is illegal. 5. Some more facts are required to be stated to dispose off the present applications. The applicant Ramchandra was arrested on 17-3-2010 and the applicants Sandeep and Hussain were arrested on 18-3-2010. On the very day of their respective arrests, applications for bail were filed before the Special Court(N.D.P.S. Court), Mapusa. The applicant Ramchandra was remanded to further custody by the Special Judge under P. C. Act on 23-3-2010, and the applicants Sandeep and Hussain were also remanded by him to further custody on 25-3-2010. By Order dated 25-3-2010, the learned N.D.P.S. Court held that she had no jurisdiction to grant bail to the applicants. 6. It is now conceded by the learned Counsel appearing for the applicants as well as by the learned Public Prosecutor that the said Ramchandra has been further remanded to custody by the N.D.P.S. Court on 31-3-2010 and the said Sandeep and Hussain on 1-4-2010. 7. The first aspect which needs consideration is whether the applicants would be entitled to bail because of the remand given to them by 5 the Special Judge under the P. C. Act which according to the applicants is illegal. Learned Public Prosecutor has tried to explain that at that stage offences under N.D.P.S. Act were not invoked. Be that as it may, it is now conceded by the learned Public Prosecutor that the N.D.P.S. Court's view that she had no jurisdiction to try offences under P. C. Act along with those under N.D.P.S. Act is incorrect. I will return to this concession a little later. 8. The learned Public Prosecutor contends that even if the Orders dated 23rd and 25th March, 2010 of the learned Special Judge appointed under the P. C. Act are illegal, the applicants/accused would not be entitled to bail. The learned Public Prosecutor submits that the learned Special Judge could have certainly remanded the applicants as they were also involved in offences punishable under the P. C. Act. The learned Public Prosecutor submits that the N.D.P.S. Court may otherwise have jurisdiction for the purpose of grant of bail or try the accused. The learned Public Prosecutor has further submitted that in case the applicants are entitled to bail on account of the so-called illegal Order of remand passed by the Special Judge under the P. C. Act then it is proper that the applicants should approach the N.D.P.S. Court, for the grant of bail. However, Shri D'Souza, the learned Counsel appearing on behalf of the applicants has tried to point out that the N.D.P.S. Court as well as the Special Judge under the P. C. Act are both deemed to be Court of Sessions, and, therefore it would be improper for the Judge of N.D.P.S. Court to grant bail to 6 the applicants on the ground that another Court of concurrent jurisdiction had remanded the accused illegally. Shri Ferreira, the learned Public Prosecutor, referring to Section 36-C of the N.D.P.S. Act has submitted that the provisions of the Code of Criminal Procedure, 1973 apply to the N.D.P.S. Court and for that it is deemed to be a Court of Sessions. The learned Public Prosecutor further submits that appeals and revisions from the N.D.P.S. Court as well as the Special Judge under P. C. Act are to be filed before this Court. The learned Public Prosecutor also submits that in case the Orders dated 25-3-2010 of the learned N.D.P.S. Court are not challenged by the applicants before this Court, then to grant bail this Court would have concurrent jurisdiction with the N.D.P.S. Court in terms of Section 439 of the Code of Criminal Procedure, 1973, and, it is in the fitness of things that the applicants ought to first approach the N.D.P.S. Court, for bail and in this context Shri Ferreira, the learned Public Prosecutor has placed reliance on Amya Kumar Sen v. State(1979 Cri. L. J. 288) wherein a Division Bench of the Calcutta High Court has held with reference to Section 438 of the Code of Criminal Procedure, 1973 that under the said Section a Petitioner has a choice as to the forum where he is to apply. Two Courts are empowered to grant bail under Section 438, namely, the High Court and the Court of Sessions and the Petitioner may choose one of the two Courts and apply to the Court of his choice. It is stated that if the Petitioner approaches the Court of Sessions for the relief under Section 438 and if his prayer is rejected, he will be again 7 entitled to approach the High Court for the same relief on the same ground under that Section. The High Court therefore held that the second petition for anticipatory bail by the Petitioner before that Court was not maintainable after the rejection of the first one by the Court of Sessions. 9. Section 439 of the Code, too, confers concurrent jurisdiction on the High Court and the Court of Sessions. If, by virtue of Section 36-C of the N.D.P.S. Act the Special Court is deemed to be a Sessions Court for certain purposes, Section 5(3) of the P. C. Act also makes the Special Judge to be a deemed Court of Sessions but the deeming fiction cannot be stretched too far for all purposes. Since it is now conceded that the N.D.P.S. Court will have jurisdiction to grant bail, it would have been proper that the applicants had approached the said Court for the grant of bail even on the ground now pleaded by the applicants. Nevertheless, I proceed to decide the applications considering the peculiar facts of this case. When the jurisdiction to grant bail is concurrent, the choice is of the superior Court to entertain it or not. The practice is to approach lower Court, first. 10. Shri D'Souza, the learned Counsel appearing on behalf of the applicants in support of his submission that on account of the illegal detention by Orders of 23rd and 25th March, 2010 of the learned Special Judge under the P. C. Act that the applicants would be entitled to bail, has placed reliance on 8 two cases decided by this Court, namely Suryakant Ramdas More v. State of Maharashtra(1990(1) Mah. L.J. 319) and Joaquim M. Correia v. State of Goa(unreported Judgment of this Court dated 18-7-1998 in Criminal Application(Bail) No.88 of 1998). Reliance is also placed on Uday M. Acharya v. State of Maharashtra(2001 Cr.L.J.1832). 11. On the other hand, Shri Ferreira, the learned Public Prosecutor in support of his submission that even assuming the said orders of the Special Judge are illegal the accused would not be entitled for bail, has placed reliance on the cases of Durei Behera v. Suratha Behera and another(1987 CRI. L. J. 1462), Kana v. The State(1980 Cri. L. J. 344), Vivek Gupta v. Central Bureau of Investigation and another(2004 Bom. C. R.(Cri.) 1549) and Nand Ram v. State(1988 Cr.L.J. 72). 12. I do not think it is necessary for me to refer to in detail to the Judgments cited on behalf of the applicants as well as the respondents except Kana v. State(supra) wherein it was held that “it has not been laid down that in all cases in which at some anterior time the custody of an accused is illegal, the accused is entitled to be released on bail, even if at the time when the application was filed, or comes for hearing, the custody is illegal”. 9 13. The said Judgments were cited and considered by me in the case of Antonios Kaminis(by Judgment dated 16-10-2009 in Criminal Application(Bail) No.301 of 2009). Those referred to in para 10 herein above were distinguished in para 10 and in para 14 it was stated as follows: 14. “Second. The applicant's entitlement for bail has got to be considered as on the date of the application filed before this Court if not as on today, and not from the date it was filed before the N.D.P.S. Court that is to say 17-07- 2009. This is not a Revision against the order dated 05-08-2009 of the learned Special Judge but a fresh application for bail, and, the contention that the application was already filed on 17-07- 2009 before the Special Court that is to say before the remand of the accused was regularised by the Special Judge Smt. Thaly on 20-07-2009 is of no significance at all. This legal position can be spelt out at least from three decisions of the A pex Court relied upon by Shri Vaz, the Special Public Prosecutor. 14.1 In Ramesh Kumar Singh(supra) a writ petition was filed under Article 32 of the Constitution and the contention raised was that the accused was remanded without being produced in the Court on the dates fixed and that was a non-compliance of the mandatory provisions of the Code(Criminal Procedure Code, 1973). The Apex Court, therefore, held that on account of such non production and the detention having become illegal, the petitioner would not become entitled to be released on bail. 10 14.2 In the case of V. L. Rohlua(supra) the petition was filed for the release of the petitioner by a writ of habeas corpus. The Apex Court noted that the petitioner's detention each time was slightly longer than 15 days but not so unconscionably long as to violate the spirit of the Code. There was a gap when the petitioner was in the custody of the Apex Court but no request was made for his release then. It was further noted that at the time of deciding the writ petition, that the petitioner was on a proper remand and in fact was remanded to the custody of the Magistrate by the Apex Court and thus the Apex Court concluded that they would not hold his detention to be illegal. 14.3 In the case of Pranab Chatterjee(supra) the petitioner had filed a writ petition, again under Article 32 of the Constitution, for his release form detention. The petitioner was arrested on 09-08-1970 under Section 151 of the Code and was not produced before the Magistrate within 24 hours nor he was informed of the ground of his arrest. It was, inter alia, contended that the petitioner was never produced before the Magistrate. The petitioner's detention was attacked on two grounds. First, that the petitioner was not informed of the grounds of his arrest and hence there was violation of Article 22(1) of the Constitution. The second ground of attack was that the petitioner after his arrest on 09-08-1970 was not produced before the Magistrate and hence there was again violation of Article 22(2) of the Constitution. Regarding the second ground, the Apex Court held that the petitioner after his arrest on 09-08-1970 along with others was produced before 11 the Sub Divisional Officer and remanded to jail custody and therefore, it was clear that the petitioner was produced before the Magistrate within the period referred to in Section 61 of the Code and Article 22(2) of the Constitution. The Apex Court did not accept the plea of the petitioner that after his arrest he was never produced before the Magistrate and further held that the question as to whether he was produced before the Magistrate subsequently when further remand orders were passed has no bearing on this contention which is really based on Article 22(2) of the Constitution. Ultimately, the Apex Court held that: “It is true that on 25-08-1970, when the petitioner was in custody in Case No.3(6) of 1970, there was actually no remand order in force. On that date, as we have already pointed out, the doctor had stated that the petitioner was sick and unfit to attend the Court. But in view of the fact that we have to consider the legality of the petitioner's detention on the date when the return has been filed in this Court, that is, on 24-09-1970, the petitioner's detention on that date cannot be considered to be illegal because he was kept in detention under proper orders of remand as an under-trial prisoner.” 14.4 The ratio of the above decisions is that if on the date of filing of the application or for that matter, even on the date of decision, 12 the petitioner's detention was in order, the previous infirmities like improper remand would not matter and because of that, an accused cannot be entitled for bail. Following the said principle, in the case at hand, it must be stated that the applicant has now been remanded by the learned Special Judge on 20-07-2009 and therefore, on 05-08-2009(when his application was decided by the learned Special Judge as well as on the date of the application filed before this Court, the applicant's detention was in order and therefore, the applicant was not entitled to bail only on the ground that earlier his remand on 06-07-2009 was not in accordance with law. I have already concluded that the remand on 06-07-2009 was otherwise perfectly legal. 14. This Court with reference to the case of Uday Mohanlal Acharya v. State of Maharashtra(supra) had observed that the Apex Court had held that the right of the accused to be released on bail under Section 167(2) of the Code was indefeasible and subsequent filing of the charge sheet did not extinguish the right accrued to the accused person to be released on bail and in the light of that the Applicant could not derive any assistance from the said case. 15. This Court further held as follows:- 13 “15. Third. In my view, the applicant cannot get bail beyond the provisions of the Act. In other words, the applicant would not be entitled to bail unless the applicant's case is brought under the provisions of Section 36-A or Section 37 of the Act. The rigors of Section 37 of the Act were not brought to the notice of this Court while deciding the case of Suryakant More(supra) as well as Joaquim Correia(supra). It is now well settled that a finding in terms of Section 37 of the Act is a sine qua non for granting bail to an accused involved in the offence under the Act.(See 2001 Cri. Law Journal 117). In other words, bail to an applicant who is the accused involved under the N.D.P.S. Act has got to be granted strictly in terms of its provisions. It is to be noted that the Act was enacted to make elaborate provisions for consolidating and amending the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matter connected therewith. Section 37 imposes certain limitations as regards grant of bail in relation to offences under Sections 19, 24, 27A and also offences involving commercial quantity and it mandates the Court that the accused is not to be released on bail (a) unless the Public Prosecutor is given an opportunity to oppose the application, (b) the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and (c) that he is not likely to commit any offence while on bail. Sub Section 2 of Section 37 of the said Act places further limitation to say that the limitation of clause (b) of sub section (1) are in addition to the limitations under the Code or any other law for the time being in force, for granting of bail. It is now well settled that Section 37(1)(b) of the Act requires the Court to adopt a negative attitude 14 towards bail but turn positive firstly, if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under trhe Act and seocndly that he is not likely to commit any offence while on bail. The provisions for bail by default has almost been nullifed and it has now been provided that in relation to an offence under Sections 19 or 24 or 27A or for offences involving commercial quantity, the reference in sub-section 2 of section 167 of the Criminal Procedure Code to 90 days wherever they occur are to be construed as 180 days and not only that, the proviso further provides that in case it is not possible to complete the investigation within a period of 180 days, the Court can extend the period upto one year on the report of the Public Prosecutor indicating progress of the investigations and the specific reasons for the detention of the accused beyond the period of 180 days”. 16. The view held in Kana v. State(supra) is in conformity with the view held by me in Antonio Kaminis and that is the law which needs to be followed now. 17. After taking into consideration the Full Bench decision in the case of Mahesh Chand v. State of Rajasthan(quoted with approval) in Nand Ram v. State(supra) as well as in Nand Ram(supra) it was held that it is settled law both on authority and principle that any accused in order to obtain bail, the accused must show that his case is either covered by proviso to sub-section (2) of Section 167 of the Code or that he was entitled to be 15 released on bail under the provisions of Chapter XXXIII of the Code, and in cases under the Act(N.D.P.S. Act, 1985) under Section 36A or Section 37 of the Act and the accused cannot get bail beyond those provisions. 18. The above said position needs to be reiterated and followed in this case as well. Admittedly, the applicants herein have now been remanded by the N.D.P.S. Court on 31-3-2010 and 1-4-2010 i.e. by a Court having jurisdiction as conceded by the learned Counsel appearing for the applicants and the learned Public Prosecutor. As at present the applicants have been remanded to custody by a Court of competent jurisdiction, they are not entitled for bail on a specious ground that their earlier remand on 23rd and 25th March, 2010 by the Special Judge under the P. C. Act was illegal. 19. Reverting to the aspect of jurisdiction of the N.D.P.S. Court, Shri Ferreira, the learned Public Prosecutor has conceded that the N.D.P.S. Court would continue to have jurisdiction to grant bail to the applicants/accused as well as to try the accused. It may be noted that Section 3 of the P. C. Act, provides for appointment of Special Judges to try any offence punishable under that Act: (a) any offence punishable under that Act, and (b) any conspiracy to commit or attempt to commit or any abatement of any of the offence specified of clause (a). 16 20. Although the N.D.P.S. Act, 1985 came in force from 14-11-1985 the provision of Section 36 as regards Constitution of Special Courts came to be introduced w.e.f. 29-5-1989. Sub-Section (2) of Section 3 of the P. C. Act states that a person shall not be qualified for appointment as a Special Judge under that Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973. Likewise, sub-section(3) of Section 36 of the N.D.P.S. Act provides that a person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. If Section 4 of the P.C. Act has a non obstante clause, so does Section 36A of the N.D.P.S. Act. Sub-Section (1) of Section 4 of the P. C. Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, or any other law for the time in force, the offences specified in sub-section(1) of Section 3 shall be tried by Special Judges only. As already stated, the learned N.D.P.S. Court appears to have been much impressed with the said expression “only” in trying to exclude her own jurisdiction. Sub-Section (3) of Section 4 of the P. C. Act provides that when trying any case a Special Judge may also try any offences, other than an offence specified in sub-section (3) with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. Likewise, Section 36A of the N.D.P.S. Act, inter alia, provides that notwithstanding anything contained in the Criminal Procedure Code, 1973, (a) all offences 17 under that Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. Sub-Section(2) of Section 36 of the N.D.P.S. Act further provides that when trying an offence under this Act a Special Court may also try an offence other than an offence under this Act with which the accused under the Code of Criminal procedure, 1973 be charged at the same trial. 21. The case of Vivek Gupta v. Central Bureau of Investigation and another(supra) dealt with