IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25048 of 2008 MUNILAL YADAV Versus STATE OF BIHAR ----------- 3. 19.8.2008 Heard. Having failed twice on earlier occasions in getting an order of release from custody, the petitioner attempts the third time through the present petition. The recovery is of 7 K.G. of ganja and the plea of the petitioner, in addition to having spent one and half years in custody, is that he underwent a surgery and the Superintendent of the Jail(Gopalganj)has reported to the court concerned that the hospital in the jail was not functioning on account of absence of the doctor and even of the compounder and, as such, the petitioner needs to be shifted to Sadar Hospital, Gopalganj for better care and treatment. The third thrust of the argument of the learned counsel is that the quantity could be in between smaller and commercial quantity and, as such, the bar of Section 37 of the NDPS Act may not apply with that rigour as the same could be in a case of recovery of commercial quantity of any narcotic substance or drug. Provision of Section 37 of the NDPS Act does not distinguish cases which may be falling 2 in the category of small quantity or the commercial quantity. It lays down three conditions for applying the jurisdiction:- (1)That a notice prior to the hearing on the prayer for bail must be given to the prosecutor. (2)That the court must have reasons to believe that the accused has not committed the offence, and (3)That the court should record a finding that the accused may not commit a similar offence. One could be sure about the first condition of giving the notice of the public prosecutor as one could be sure that there could be reasonable ground to say or believe that the petitioner has committed the offence. The third condition is an impossibility as regards the application of the discretion inasmuch as no court could be sure about the accused, like the petitioner, that he would not be indulging in the offence in future. The absence of any of the three conditions divests a court of hearing the prayer for bail and as such divests it of the powers of directing the release. As regards the second ground of illness of the petitioner, the Jail Superintendent has 3 simply requested for permission to shift the petitioner from the jail hospital to the Sadar hospital. The court does not have anything to find that amenities in the Sadar hospital could be so poor or dificient so as to requiring it urgently that the petitioner be released from custody so that he is taken to any institute of higher class for his treatment. The recovery is already there. The petitioner has remained in custody. However, the courts below appear undermining its duties of delivering justice with expedition. I may remind the courts below that we are not in a era where we did not have any constitution. Constitutional guaranties could include handing over justice after the reasonable time and as such the courts have to ensure quick disposal of cases. One is very much aware of the situation prevailing in courts that the number of cases have jumped many fold and that the agencies which are supposed to assist it in delivering justice are not rendering the assistance as they could be expected to. But the courts have still to toil and forge their own tools so as to dispensing justice. I direct the court below to issue a 4 notice to the officer-in-charge of the police station. While doing so the court must append at the foot of the notice the names of the witnesses with full details to produce them on the date fixed for hearing. The saddest part of the trial is that the court is not doing it. The court must do it in a fortnight from the day of the receipt or production of a copy of the present order and expedite the hearing so as to concluding it in one and half years from the date of the framing of the charges. B.Kr. ( Dharnidhar Jha, J. )