IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 Bail Appl..No. 1337 of 2010 C.R.NO.8 OF 2009 OF EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, KOTTAYAM APPLICANTS: ACCUSED NO.2 & 3 ------------------------------------ 1. T.A.MOHAMMED , AGED 26 YEARS, S/O.ALIYAR, THATTAYATH HOUSE, MANNAMKANDOM VILLAGE, PADIKAPPU. 2. AZIZ, AGED 34 YEARS, S/O.MUHAMMED, PARAMBIL HOUSE, IRUMPUPALAM, MANNAMKANDOM VILLAGE, BY ADV. SRI.P.VIJAYA BHANU SRI.THOMAS J.ANAKKALLUNKAL RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REP.BY C.I.OF EXCISE, EXCISE ENFORCEMENT AND ANTI NARCOTIC SPECIAL SQUAD, KOTTAYAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1337 OF 2010 ------------------------------------------------------ Dated this the 5th day of March, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. Petitioners are accused Nos.2 and 3 in C.R.No.8 of 2009 of the Excise Enforcement and Anti Narcotic Squad, Kottayam. 2. The offences alleged against the petitioners are under Sections 21(c), 29 and 49 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecution case is that on 24.7.2009, accused Nos.1 to 3 were found transporting 1.47 kgs of Hashish oil in an autorickshaw driven by accused No.4. It was found that the Hashish oil was kept in the dashboard of the autorickshaw. Accused Nos.1 to 4 were arrested on 24.7.2009. The prosecution case is that accused Nos.5 and 6 had supplied the Hashish oil to the other accused. 4. The petitioners are in judicial custody since 24.7.2009. The learned counsel for the petitioners submitted that the petitioners are B.A. NO. 1337 OF 2010 :: 2 :: entitled to get default bail under the proviso to Section 167(2) of the Code of Criminal Procedure, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the NDPS Act. The counsel also relied on the decision in Union of India v. Thamisharasi and others ((1995) 4 SCC 190). The learned counsel for the petitioners submitted that as per the order dated 22.2.2010 in B.A.No.872 of 2010, bail was granted to accused No.4. While granting bail to accused No.4, this Court held thus: “4. The petitioner is in judicial custody since 24.7.2009.The period of 180 days is over. The investigation is not complete and final report is not filed. It is submitted by the learned counsel for the petitioner that sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with the proviso to Section 167(2) of the Code of Criminal Procedure would entitle the petitioner to get default bail, since no application was filed by the prosecution to enlarge the period of 180 days mentioned in the proviso to sub-section (4) of Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned counsel for the petitioner also relied on the decision in Union of India v. Thamisharasi and others ((1995) 4 B.A. NO. 1337 OF 2010 :: 3 :: SCC 190); wherein it was held that the limitations on granting of bail specified under Section 37(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are in addition to the limitations provided under Section 437 of the Code of Criminal Procedure and they do not exclude the applicability of the proviso to Section 167(2) of the Code of Criminal Procedure. 5. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the petitioner, the nature of the offence and the present stage of investigation and also taking note of the fact that the period of 180 days from the date of arrest of the petitioner is over, I am of the view that bail can be granted to the petitioner.” 5. The petitioners moved for bail before the learned Sessions Judge. The applications filed by the petitioners were dismissed by the order dated 27.2.2010. It would appear that the order in B.A.No.872 of 2010 was brought to the notice of the learned Sessions Judge. However, the learned Sessions Judge brushed aside the contentions put forward by the petitioners and held thus: B.A. NO. 1337 OF 2010 :: 4 :: “11. It is also contended on behalf of the petitioners that the 4th accused has already moved a bail application No.872/2010 before the Hon'ble High Court of Kerala and as per the order dated 22.2.2010 he was granted bail on certain conditions. It is vehemently argued that since the Hon'ble High Court granted bail to A4 the petitioners are also entitled to get equal treatment and hence they are entitled to bail. On this aspect, I am of the view that the Hon'ble High Court of Kerala while granting bail to A4 has not specifically held the question whether 37(ii) need not be looked into and ignoring 37(ii) bail has to be granted. As per para 5 of the order of Hon'ble High Court of Kerala in bail application No.872/2010 it can be seen that bail is granted taking note of the fact that 180 days is already over. Since application of Sec.37(ii) is not specifically excluded by the Hon'ble High Court of Kerala I am of the view that the spirit of the said order cannot be applied in these applications.” 6. The learned Sessions Judge appears to have interpreted the decision of the High Court according to his own imagination. The High Court had relied on the decision of the Supreme Court in Union of India v. Thamisharasi and others ((1995) 4 SCC 190). The learned Sessions Judge did not say anything about the decision of B.A. NO. 1337 OF 2010 :: 5 :: the Supreme Court in (1995) 4 SCC 190. I am of the view that the learned Sessions Judge was not justified in ignoring the decision of the Supreme Court and in misinterpreting the order passed by the High Court in the manner in which it was done in paragraph 11 of the order passed by him. Astuteness in making an order is understandable. But, that does not enable a judicial officer to disregard the binding precedents. Even assuming that the order passed in B.A.No.872 of 2010 need not be treated as a precedent, what about the decision of the Supreme Court referred to in the order passed by the High Court ? Did the learned Sessions Judge refer to it ? How could the learned Sessions Judge bypass the decision of the Honourable Supreme Court ? I am of the view that the binding precedents should be respected and followed by the subordinate courts. The order passed by the learned Sessions Judge (Sri.V.T.Raghunath) does not appear to reflect a healthy trend in the judicial hierarchy. 7. In Union of India v. Thamisharasi and others ((1995) 4 SCC 190), the submission made by the learned Additional Solicitor General was referred to in paragraph 5 of the judgment which reads as follows: B.A. NO. 1337 OF 2010 :: 6 :: “5. The submission of the learned Additional Solicitor General is that by virtue of the special provisions in the NDPS Act and particularly Sections 36 and 37 thereof, the application of the proviso to sub- section (2) of Section 167 CrPC is excluded in the case of a person accused of any offence punishable under the NDPS Act. On the other hand, Shri Ram Jethmalani, learned counsel for the respondents contends that the scheme of the NDPS Act supports the applicability of the proviso to sub-section (2) of Section 167 CrPC instead of indicating its exclusion in such cases.” 8. These contentions were dealt with by the Honourable Supreme Court and it was held thus: “8. ...... The clear reference to the power of the Magistrate under Section 167 CrPC, particularly sub- section (2) thereof, is an indication that no part of sub- section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the NDPS Act. ...... Except for Section 37 of the NDPS Act, no other provision of the NDPS Act is relied on to contend that there is any inconsistent provision in the NDPS Act to exclude the applicability B.A. NO. 1337 OF 2010 :: 7 :: merely of the proviso to sub-section (2) of Section 167 CrPC when sub-Section (2) of Section 167 of the Code is made expressly applicable by Section 36A of the NDPS Act. 9. The question, therefore, is: Whether Section 37 of the NDPS Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section (2) of Section 167 CrPC when sub-section (2) of Section 167 is expressly made applicable by the NDPS Act? The non obstante clause at the beginning of sub-section (1) of Section 37 indicates that the provisions in clauses (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every offence punishable under this Act to be cognizable. Clause (b) imposes limitations on granting of bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting of bail as stated in sub-section (2) of Section 37. Clause (b) of sub-section (1) specifies the two limitations on granting of bail, namely, (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 learned Additional Solicitor General contends that these B.A. NO. 1337 OF 2010 :: 8 :: limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 indicate that the applicability of the proviso to sub-section (2) of Section 167 CrPC is excluded in such cases. We are unable to accept this contention. ...... ...... 14. In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 CrPC in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary implication. As shown by us, there is no such provision in the NDPS Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 CrPC which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant.” 9. In view of the decision of the Supreme Court in Thamisharasi's case, I am of the view that the finding in paragraph 11 of the order passed by the learned Sessions Judge is in clear disregard of the law laid down by the Honourable Supreme Court. 10. A judicial officer may have his own views on questions of B.A. NO. 1337 OF 2010 :: 9 :: law. Those views need not necessarily be in consonance with the decisions of the superior courts. But such personal views should not be reflected in the judicial orders passed by a judicial officer, if the same runs contra to the law laid down by the superior courts. If a judicial officer is allowed to do so, there is no meaning in the hierarchy of courts and the powers of the Supreme Court and High Court in the matter of interpreting provisions of law and in laying down the principles. The subordinate courts are not entitled to ignore a binding precedent of the Supreme Court or of the High Court and to misinterpret any such binding precedent in the manner it was done by the learned Sessions Judge. Such practice is liable to be condemned. 11. The petitioners shall be released on bail on their executing bond for Rs.50,000/- each with two solvent sureties for the like amount to the satisfaction of the Court of the Special Judge for NDPS Act cases, Thodupuzha, subject to the following conditions: a) The petitioners shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays and Thursdays, till the final report is filed or until further orders; B.A. NO. 1337 OF 2010 :: 10 :: b) The petitioners shall appear before the investigating officer for interrogation as and when required; c) The petitioners shall surrender their passports, if any, before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within a period of one week. If any of the petitioners does not hold an Indian Passport, an affidavit sworn to by him shall be filed before the Court of the Special Judge for NDPS Act cases, Thodupuzha, within one week; d) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence; e) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; f) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. (K.T.SANKARAN) Judge ahz/