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Madhya Pradesh High Court · body

1989 DIGILAW 381 (MP)

Bhavarsingh v. State of M. P.

1989-10-24

K.L.SHRIVASTAVA

body1989
ORDER K.L. Shrivastava, J, 1. This is an application under section 439 of the Criminal Procedure Code, 1973 (for short 'the Code) for grant of bail. 2. According to the prosecution, opium weighing 15.650 grams was seized from the residence of the petitioner on 16-9-1989. It is "narcotic drug' as defined in section 2 (xiv) of the Narcotic Drugs and Psychotropic Substances Act, 1965 (for short 'the Act'), and its possession by the petitioner was in contravention of the provision of section 8 of the Act. It is urged that he is, therefore, punishable under section 18 ibid for a term of 10 years in the minimum. 3. According to the learned counsel for the petitioner, it is clear from the voters list, the certificate of the Gram Panchayat and the affidavit of the petitioner's brother that the residence from where the contraband opium was seized is not in the petitioner's exclusive possession. It is further urged that the element of mens rea not having been excluded by the Legislature, it constitutes an essential element of the crime in question and, therefore, it is necessary for the prosecution to prove not only the corpus possessions but also the animus possedendi. 4. It is urged on behalf of the petitioner that in the circumstances, the petitioner is entitled to be released on bail. In support of his submissions, the learned counsel for the petitioner has placed reliance on the decisions in re A. Ramaswami's case AIR 1959 SC 160, Radhakishan's case AIR 1967 SC 88 and Matadin's case 1980 Cr. LJ 186. 5. Learned counsel appearing for the State opposes the application on the ground that on the material on record it is clear that the petitioner was in possession of the opium and section 35 of the Act provides for presumption of culpable mental state. 6. On behalf of the State, it is further urged that in his signed statement given to Jamnalal Meena, Inspector employed in the Office of the Narcotics, Neemuch Division No.1, the petitioner has admitted his exclusive possession of the contraband opium and the aforesaid statement is not hit either by section 25 of the Evidence Act or by section 162 of the Code. Referring to sections 53 and 53-A of the Act it is urged that as the said Inspector is not entitled to file charge sheet under section 173 Ibid, be is not a Police Officer. In support of this submission, reliance has been placed on the decision in Iilias' case AIR 1970 SC 1065 . It is submitted that offences of the sort expose the society to the greatest risk and the petitioner does not deserve to be enlarged on bail. Reference in this connection has been made to the decision in Abdul Hamid Khan Pathan's case 1987 E.F.R. 770 in which it has been pointed out that such offences are graver than the capital crime of murder. 7. Learned counsel for the State further submits that even if the petitioner was entitled to bail under the general provisions of the Code be cannot be released on bail in view of section 37 of the Act substituted by the Narcotic Drugs and Psychotropic Substances (Amendment) Act. 1988, which as a condition of grant of bail, requires the petitioner to show that prima facie he is not guilty of the offence. 8. The point for consideration is whether the bail application deserves to be allowed. 9. Section 437 of the Code provides when bail may be taken by a Court other than the High Court or Court of Session in case of non-bailable offence. Considerations are common both in case under sub section(i) of section -37 and in that under sub-section (i) of section 439 of the Code which relates to special powers of High Court of Session regarding bail. 10. The right of personal liberty is a highly prized one and is guaranteed under Article 21 of the Constitution of India. The procedure therein referred for depriving a person of his life or liberty has to be just. fair and reasonable and opposition for bail has also to be so as pointed out in Sheikh Salim's case 1985 JLJ 65 Reference in this connection may also be usefully made to the decision in T.V. Wathi Swaran AIR 1983 SC 361 wherein it has been pointed out that Articles 14, 19 and 21 are not mutually exclusive and they nourish and strengthen each other. 11. From the very inception, an accused has the shield of presumptive innocence around him. 11. From the very inception, an accused has the shield of presumptive innocence around him. Pre-trial detention is not in derogation of the presumption and is not to be resorted to as a measure of punishment. The question of punishment crops up only at the conclusion of the trial. 12. Courts exist for dispensing justice and the interest of public justice must reign supreme. Amongst various considerations which enter the decision of bail application, the principal one behind pre trial detention is to ensure that the petitioner does not thwart public justice either by absconding or by tampering with the prosecution evidence. Therefore, in the event of conflict between the claim of right of personal liberty and the interest of public justice the former must be subordinated to the latter. It may be pointed out that the existence of a prima facie case of petitioner's involvement in a serious crime carrying severe punishment is not by itself sufficient to reject his prayer for bail. It does, however, assume importance in so far as it is likely to prompt him to thwart publice justice. As to the quality of material which prosecution must have for justifying custody at various stages between arrest of a person and the conclusion of investigation, the Full Bench decision in Gulabchand's case 1982 JLJ 170 makes an illuminating reading. 13. What has been stated above is in relation to bail under the Code. The provision which however, forms the sheet anchor of the submissions of posing the prayer for bail is embodied in section 37 of the Act. It is in these terms ; (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) (a) every offence punishable under this Act stall 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 bailor 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 subsection (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." (emphasis supplied) 14. A similar provision with non obstante clause in rule 184 of the Defence and Internal Security of India Rules 1971 (for short 'the DIR) came up for interpretation in the decision in Balchand's case AIR 1977 SC 366 and it was held that the provision did not constitute a complete Code in the matter of bail and harmoniously construed, it is supplemental to the relevant provision in section 438 of the Code pertaining to what is commonly known as anticipatory bail. Sub section (2) of section 37 of the Act expressly shows that the provision is supplemental. 15. In the decision is Abbas Ali's case 1975 JLJ SN 116 with reference to the said rule of the D.I.R. it has been pointed out that it has a limited connotation, and affects only the general provision pertaining to bail under section 437 of the Code and the other provisions of the Code, which offer protection to special class of offenders (ride proviso to section 437) and serve a beneficial purpose of expeditious trial [vide section 167 (2) of the Code regarding bail on the prosecution is failure to file charge sheet within the specified period] remain unaffected. Reference in this connection nay also be usefully made to the decision in Powell Nwawa Ogichi's case 1986 (3) Crimes 577 , wherein it has been held that as section 167(2) of the Code nowhere prescribes any period for filing charge-sheet, section 10 of the General Clauses Act, 1897 is not attracted and under the aforesaid provision of the Code, bail has to be offered to the accused without his applying for the same and he can only be detained in further custody if he fails to furnish bail. 16. The legal position may be stated as under. Where, in relation to offences falling within the description given in Section 37 of the Act, the prosecution does not oppose the application for bail the Court by virtue of section 4(2) of the Code, is free to deal with the matter under the relevant provisions of the Code applying the general principles governing the matter of bail. Where, in relation to offences falling within the description given in Section 37 of the Act, the prosecution does not oppose the application for bail the Court by virtue of section 4(2) of the Code, is free to deal with the matter under the relevant provisions of the Code applying the general principles governing the matter of bail. However, where the prayer for bail is opposed, section 37 of the Act makes it obligatory on the Court to ensure that the conditions therein laid down are fulfilled before the prayer for bail is allowed Thus, in matters of bail in relation to offences covered under section 37 of the Act in addition to the requirements of the relevant provisions in the Code, the guidelines contained in the relevant provision in section 37 of the Act have also to be followed. There guidelines have to be impliedly imported in the relevant provision of the Code. 17. It is no doubt true that, with the presumptive innocence of an accused, initially it is for the prosecution to show that a prima facie case of petitioner's involvement in the crime has been made out. However, noticing the difference in the phraseology used in section 437 of the Code and section 37 of the Act, it has to be held that as respects bail the burden is ultimately not on the prosecution to show that on a cumulative consideration of the material on record and the submissions made, there is a prima facie case against the petitioner but it is on the petitioner to show that prima facie he is not guilty. Reference in this connection may usefully be made to the decision in Badri Prasad's case AIR 1953 Cal. 28 , and Abbas Alis case (supra). Reference in this connection may usefully be made to the decision in Badri Prasad's case AIR 1953 Cal. 28 , and Abbas Alis case (supra). It may be noted, that in dealing with the question of bail, there is no occasion for a final conclusion as to the guilt or innocence of the accused and the unshifting burden of proving at the conclusion of the trial the crime against the accused, beyond reasonable doubt and in all its ingredients, rests on the prosecution 18, On a careful consideration of the submissions made by the learned counsel for the parties and particularly, in view of the petitioner's admissible statement to Jamnalal Meena, it cannot be held that there are reasonable grounds for believing that the petitioner is not 'guilty of the crime complained of. Therefore, in view of the provision in section 37 of the Act, he is not entitled to bail. t 9. As a result of the aforesaid discussion, the application for bail is dismissed.