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1995 DIGILAW 442 (PAT)

Bhagirath Rai v. Union of India

1995-08-08

N.PANDEY

body1995
Order This application under Section 439 (2) of the Code of Criminal Procedure (in short 'Code') has been filed to quash the order dated 27.7.1993, whereby the Sessions Judge, West Champaran, granted provisional bail to opposite party no. 2 Noor Mohammad in a case under Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act) read with Rule 53 of the Narcotic Drugs and Psychotropic Substances Rules, 1985, as also the order dated 12.8.1993, whereby the order of provisional bail was confirmed. 2. It appears on 17.3.1993, on certain confidential information, the Inspector of Customs, Motihari, raided the house of opposite party no. 2 at Bettiah, in connection with prohibitory orders of the Government of India issued under Section 11 of the Customs Act read with Section 3 (1) of the Imports & Exports (Control) Act, 1947, as also Section 8 of the NDPS Act. At the time of search of the house of opposite party no. 2, certain quantity of smuggled charas was recovered from his possession. It appears, two separate cases were instituted - one with respect to recovery of 70 Kgs. and the other with respect to 40 Gms. of charas. 3. According to the prosecution, the opposite party no. 2 was a professional smuggler of such type of prohibited goods. The statement of opposite party no. 2 was also recorded in presence of independent witnesses. Thereafter, he was taken into custody under the provisions of the NDPS Act and the Customs Act. The present application has been filed on behalf of the Customs Inspector who is the complainant in this case. His grievance is that opposite party no. 2 being habitual smuggler of prohibited articles, it was not proper for the learned Sessions Judge to release him on bail. 4. It is further stated that with respect to other case also which was started for the recovery of 70 Kgs. of charas, the matter was brought to this court and a similar prayer was made for cancellation of the bail or3nted by the Sessions Judge. A learned Single Judge of this Court, after hearing the parties. was pleased to cancel, the order of the court below granting bail and a direction was issued to the Sessions Judge to take immediate steps for arresting and remanding him to custody. A learned Single Judge of this Court, after hearing the parties. was pleased to cancel, the order of the court below granting bail and a direction was issued to the Sessions Judge to take immediate steps for arresting and remanding him to custody. At that stage also it was brought to the notice of the Court that opposite party no. 2 was a habitual smuggler. Therefore, it was not proper for the Sessions Judge to release him on bail. 5. From the facts stated above, it has been established that two different cases were started against the opposite party no. 2 for the offence under the Act and Customs Act. Section 37 of the Act provides that every offence punishable under this Act would be cognizable and no person accused of an offence punishable for a term of imprisonment of five years of more under this Act shall be released on bail, unless Public Prosecutor was given an opportunity to oppose the application and where a public prosecutor opposed, the court is satisfied 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. 6. The Supreme Court while examining a similar question relating to power of the High Court as well as Sessions Judge in granting bail for the offence under the NDPS Act, held that power of the Sessions Judge or the High Court as provided under the Code to grant bail is subject to the limitation as pointed out under Section 37 of the NDPS Act. In other words, the provisions of Section 37 of the NDPS Act shall always prevail over the power of the Sessions Judge or the High Court as prescribed under the Code. Therefore, no person accused of an offence punishable under the Act or under the rule made therein shall, if in custody, be released on bail unless all conditions set forth in clauses (a) and (b) of Section 37 of the NDPS Act are satisfied. 7. In the present case, on the first date, the learned Sessions Judge although noticed the submission of the Additional Public Prosecutor Incharge that Opposite Party no. 2 was a professional and habitual smuggler but granted him provisional bail, without justifying reasons for such release. 7. In the present case, on the first date, the learned Sessions Judge although noticed the submission of the Additional Public Prosecutor Incharge that Opposite Party no. 2 was a professional and habitual smuggler but granted him provisional bail, without justifying reasons for such release. Similarly, on 12.8.1993, he confirmed the order of provisional bail, but without satisfying the requirements of Sections 37 (a) and (b) of the NDPS Act. To me, it is really surprising how the learned Sessions Judge has dealt with this matter in such a casual manner. 8. Learned counsel for the opposite party no. 2, however, submitted that in the case which was started with respect to recovery of 70 Kgs. of charas, opposite party no. 2 has already been acquitted. Therefore, it cannot be said that he is a habitual offender as alleged by the Customs Inspector. He further contended that this is a case in which only 40 Gms. of charas was recovered. Therefore, in view of such a minor offence, it would not be proper to cancel the bail bond at this stage. Unfortunately, I am unable to accept such submission. 9. The law is already settled by the Supreme Court in the case of Narcotics Control Bureau v. Kishan Lal & Ors. ( AIR 1991 SC 558 ) that no court can release an accused who has been taken into custody for the offence as alleged unless mandatory requirements of Sections 37 (a) and (b) are fulfilled. The power of a court to grant bail, as indicated under Sections 437 and 439 of the Code are altogether different to what has been provided under the provisions of Section 37 of the NDPS Act. That apart, there is no denial that within a short span of time,' two different cases were lodged against the petitioner. Therefore, allegation of the prosecution that the opposite party no. 2 is a haibtual offender cannot be ignored. 10. Apart from what has been noticed above, from a bare perusal of the order of the Sessions Judge, it would appear that he was conscious of the fact that as many as two cases were instituted against opposite party no. 2 under the provisions of the NDPS Act and the Custome Act. 11. 10. Apart from what has been noticed above, from a bare perusal of the order of the Sessions Judge, it would appear that he was conscious of the fact that as many as two cases were instituted against opposite party no. 2 under the provisions of the NDPS Act and the Custome Act. 11. For the reasons stated above, I have no option but to allow this application and set aside the order of the Sessions Judge, dated 27.7.1993, and 12.8.1993, passed in Case No. 5/OC/93 trial no. 16/93 and direct the court below to take immediate steps to get the opposite party no. 2 in custody.