ST A TE OF MAD HY A PRADESH A v.

KAJAD

SEPTEMBER 6, 2001

[M.B. SHAH AND R.P. SETHI, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 1985 :

Sec.37-Requirements before granting bail-Nature of-Held, mandatory-Limitations in granting bail-Jn addition to the limitation under C CrPC-Negation of bail is the rule and its grant an exception-Successive bail applications permissible under changed circumstances only else consideration of subsequent bail application amounts to reviewing earlier order-Not permissible under criminal law.

Respondent was apprehended under S.50 of N.D.P.S. Act, 1985. Opium D was seized from him and he was charge sheeted. His application for bail was rejected by the Trial Court and the High Court. However, subsequent application for bail was allowed by the High Court. Hence this appeal by State.

Allowing the appeal, the Court

HELD : I. The purpose of enacting the N.D.P.S. Act is to control the menace of drug trafficking as is evident form its scheme. Section 37 of the Act clearly states that person accused of an offence punishable for a term of 5 years or more shall not generally be released on bail. Thus negation

of bail is the rule and its grant an exception. Under sub-clause II of Cl.(b) F of Sec.37(1), Court before granting bail must satisfy on the basis of record produced before it that there exists reasonable ground for believing that the accused is not guilty of the offence with which he is charged and further that he is not likely to commit any offence while on bail. Court must also take into consideration that the above condition of bail are in addition to the limitation provided under Cr.P.C. or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail is uncalled for. [620-B, C, DJ

Maktool Singh v. State of Punjab, [1999) 3 SCC 321; Intelligence Officer, Narcotics Control Bureau v. Sambhu Sankar and Anr., JT (2001) 2 H 617

A SC 372 and Smt. D. Sarojini v. State of A.P., (2001) 4 Supreme (179), relied on.

2. Successive bail applications are permissible under changed circumstances. But without change in the circumstances, the second bail B application would be deemed to be seeking review of earlier judgment which is not permissible under criminal law. 1621-D, E]

Hari Singh Mann v. Harbhajan Singh Bajwa and Anr., (2001] 1 SCC 169, relied on.

3. The impugned order passed ignoring the mandatory requirement of Sec. 37 of NDPS Act and condition of granting bail under Cr.P.C., is not sustainable. [621-FI

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 907 of 2001.

From the Judgment and Order dated 7 .12.2000 of the Madhya Pradesh Hgh Court in M. Cr!. C.No. 3306 of 2000.

Uma Nath Singh and Ms. Bharti Tyagi for the Appellant.

C.L. Sahu and Ms. Hema Sahu for the Respondent.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

Acting upon a definite information received by the Police Station Jawad, District Neemuch, Madhya Pradesh, force was deployed and the respondentaccused apprehended on the night of 24th March, 2000. After compliance of the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Act"), opium weighing 7 Kgs, was seized from the accused which he had kept in his bag. After completing G necessary procedural formalities and getting the samples tested, a chargesheet was submitted against the accused in the competent court. Applications for bail moved by the accused was rejected by the trial court. Dissatisfied with the rejection of his bail application, the respondent-accused moved an application in the High Court which was registered as Miscellaneous Criminal Case No. 2052 of 2000. The said application was rejected by the High Court H vide order dated 5.6.200. Without mentioning any change in the circumstances,

the respondent-accused moved another application in the High Court in the A month of August, 2000 which was adjourned from time to time and ultimately allowed vide the order impugned in this appeal.

Learned counsel appearing for the appellant-State has contended that the High Court has committed an error of law by granting bail to the respondentaccused ignoring the provisions of Section 37 of the Act, though merely B making a mention of it in the impugned order. It is further contended that in the facts and circumstances of the case, the High Court was not justified in granting the bail to the accused in view of the dismissal of his earlier bail application and in the absence of any change in the circumstances. The learned Judge granting the bail is stated to have adopted a casual approach C in dealing with a heinous crime committed under the Act. It is submitted that the order granting the bail amounts to reviewing the earlier order which is not permissible in criminal cases.

It is not disputed that the accused was apprehended and charged for the commission of an offence punishable under Section 18 of the Act which D is punishable with rigorous imprisonment for a term, not less than 10 years but which may extend to 20 years and is also liable to a fine of not less than one lakh rupees.

Section 37 of the Act provides that the offences under the Act shall be cognizable and non-bailable. It reads: E

"Offences to be cognizable and non-bailable-,-( 1) Notwithstanding anything contained in the Code of Crim in al Procedure, 1973-

(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 limitations on granting of bail specified in clause (b) of sub- H

A section (I) are in addition to the limitations under the Code of lr1mma1 Procedure, 1973 or any other law for the time being in force, or granting of bail."

The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 B of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant and exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before C it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (!)of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating D the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.

In Maktool Singh v. State of Punjab, [ 1999] 3 SCC 321 this Court considered the scope of Section 37 along with the scheme of the Act and held:

"The only offences exempted from the purview of the aforesaid rigours on the bail provisions are those under Sections 26 and 27 of the Act.

The former is punishable upto a maximum imprisonment for three years and the latter upto a maximum imprisonment for one year. For all other offences, the courts' s power to release an accused on bail during the period before conviction has been thus drastically curtailed by providing that if the Public Prosecutor opposes the bail application, no accused shall be released on bail, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence."

To the same effect are the judgments of this Court in Intelligence officer, Narcotics Control Bureau v. Sambhu Sankar and Anr., JT (2001) 2 SC 372 and Smt. D. Sarojini v. State of A.P., (2001) 4 Supreme 179.

In the instant case, the learned Single Judge of the High Court has H granted the bail on his own sense of observation regarding the course of

conduct adopted by the accused at the time of his interception and arrest. A Merely because the accused was found to be continuing to hold bag containing opium during the period, the raiding party searched him in accordance with the provisions of the Act, the learned Judge was not justified to conclude "it is by itself unnatural". How the learned Judge concluded that the conduct of the accused or raiding party were unnatural is not discernible B from the impugned order. A person, apprehended by a raiding party, who is sought to be searched is supposed to hold the goods in his possession unless he opts to flee from the place of occurrence or advised to throw the container in which the offending substance is contained. Section 37 of the Act has been referred in the impugned order not for the purposes of showing of its compliance but to justify the passing of an apparently wrong order. If, C besides referring to Section 37 of the Act, the learned Judge would have referred to its provisions, he would not have fallen a prey to the ulterior designs of the respondent-accused.

It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. case No. 2052 of 2000 on 5.6.2000 has not D denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa and Anr., E (200 I] 1 SCC 169 and various other judgments.

We are satisfied that the impugned order having been passed in violation of the provisions of the Act by ignoring the mandatory requirements of Section 3 7 and the conditions governing the grant of bail under the Code of Criminal Procedure and is thus not sustainable. Accordingly, the appeal is F allowed by setting aside the order impugned. The respondent-accused shall surrender and his bail bonds are cancelled. He shall be taken into custody during the trial of the offence with which he has been charged.

S.K.S.

Appeal allowed.