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2002 DIGILAW 302 (HP)

STATE OF H. P. v. MUNSHI RAM

2002-11-07

KAMLESH SHARMA

body2002
JUDGMENT Ms. Kamlesh Sharma, J.—This criminal revision at the instance of the State of Himachal Pradesh is directed against the judgment dated 9.4.2002 passed by the Additional Sessions Judge (II), Kangra at Dharamshala, whereby respondent was granted bail in the sum of Rs. 25,000 with one surety in the like amount to the satisfaction of any Judicial Magistrate at Dharamshala on the conditions set out therein. 2. It is held by the Additional Sessions Judge that there is total non-compliance of the mandatory provisions of sub-sections (5) and (6) of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act) inasmuch as there is no material on record to show that the Authorised Officer recorded the reasons and sent them to his immediate official superior as required under sub-sections (5) and (6) of Section 50 of the NDPS Act. It is also held that the mandatory provisions of Section 42 were also not complied with for not recording the grounds of his belief by the Authorised Officer as envisaged under proviso to sub-section (1) of Section 42 for conducting search at any time between sunset and sunrise and also for not sending a copy thereof to his immediate official superior within 72 hours as per sub-section (2) of Section 42. He has relied upon the judgment of learned Single Judge of Bombay High Court in Lawarance DSouza v. State of Maharashtra and another, 1992 Crl. Law Journal 399, wherein it is held that non-compliance of mandatory provisions should weigh with the Court while considering the applications for bail. 3. The Additional Advocate General for the State has pointed out that prima-facie the provisions of Sections 42 and 50 are not attracted as the present is a case of chance recovery and not of prior information. As per the prosecution case, the police party headed by SI Negi Ram, Police Station Shahpur during the course of their routine Nakabandi checked Maruti Van No. HP-39-0356 going from Nurpur to Shahpur and found a polythene bag concealed under the drivers seat. On search of the bag, char as like material in the shape of sticks was found which weighed 1 kg. It is further urged by the learned Additional Advocate General that the Additional Sessions Judge while considering the bail application has considered the merits of the prosecution case as if he was deciding it finally. 4. On search of the bag, char as like material in the shape of sticks was found which weighed 1 kg. It is further urged by the learned Additional Advocate General that the Additional Sessions Judge while considering the bail application has considered the merits of the prosecution case as if he was deciding it finally. 4. On the other hand, the learned Counsel for the respondent has supported the impugned order. He has urged that in the absence of any allegation against the respondent that he is trying to tamper with the prosecution evidence or influence its witnesses or he is likely to jump the bail or it will not be possible to procure his presence during the trial, there are no grounds for cancellation of the bail. According to the learned Counsel, the Additional Sessions Judge has rightly granted the bail after satisfying himself that there is no material on record to show that the mandatory provisions of Sections 42 and 50 have been duly complied with. 5. Before considering the respective contentions of the learned Counsel for the parties, the scope of Section 37 of the NDPS Act will be examined. Section 37 before and after its amendment by Act No. 2 of 1989 is as under: Section 37 before amendment "37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of any 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— (1) 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, or any other law for the time being in force on granting of bail." Section 37 after its amendment By Act No. 2 of 1989. "37. (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, or any other law for the time being in force on granting of bail." Section 37 after its amendment By Act No. 2 of 1989. "37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of any offence punishable for [offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless— (1) 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." 6. By the amendment, in place of words "offence punishable for a term of imprisonment of five years or more" the words "offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity" have been substituted in sub-section l(b) of Section 37 which show that the two limitation for granting bail have been made applicable to offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity and the offences under Section 20 for contravention in relation to cannabis plant and cannabis involving small quantity and non-commercial quantity are exempted. In other words, the offences under Section 20 for small quantity and non-commercial quantity continue to be cognizable and non-bailable and limitations for granting bail for these offences will be under the Code of Criminal Procedure or any other law for the time being in force, on granting of bail. 7. In other words, the offences under Section 20 for small quantity and non-commercial quantity continue to be cognizable and non-bailable and limitations for granting bail for these offences will be under the Code of Criminal Procedure or any other law for the time being in force, on granting of bail. 7. So far the offences under Section 19 or Section 24 or Section 27-A and involving commercial quantity are concerned, the two limitations provided under Section 37 are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force, on granting of bail. 8. The scope of Section 37 fell for consideration of the Supreme Court in a number of judgments. In Union of India v. Ram Samujh and another, (1999) 9 Supreme Court Cases 429, the learned Judges of Supreme Court have held that the jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37. It can be granted in a case where 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. Following this judgment in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 Supreme Court Cases 549, the learned Judges have further held that having regard to the provisions of Section 37 of the Act, it would be too early to take into account and judge the matter regarding non-compliance with the formalities during the bail stage. It is observed in paragraphs 6 and 7: "6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in trial regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. It is unfortunate that matters which could be established only in trial regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections. 7. We may also observe that learned Single Judge has not recorded a finding in terms of Section 37 of the Act which is sine qua non for granting bail to an accused involved in the offence under the Act." [Emphasis supplied] 9. In State of H.P. v. Kajad, (2001) 7 Supreme Court Cases 673, the learned Judges of the Supreme Court have categorically held that negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). It was also held that the successive bail applications are permissible under the changed circumstances, but without the change in the circumstances, the second bail application would be deemed to be seeking review of the earlier bail application which is not permissible under the criminal law as has been held in the earlier judgment of Supreme Court in Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169. In Babua alias Tazmul Hossain v. State of Orissa, (2001) 2 Supreme Court Cases 566. The learned Judges have reiterated the interpretation of Section 37 given in their earlier judgments and have further explained in para 3 : "In view of Section 37(l)(b) of the Act unless 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 alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(l)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. But those reasons would be insignificant if we bear in mind the scope of Section 37(l)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the court, and the validity of Section 37(1 )(b) having been upheld, we cannot take any other view." [Emphasis supplied] 10. In view of the law laid down by the Supreme Court in the above cited judgments, this Court has no hesitation to hold that the Additional Sessions while granting the bail has not kept in view the two limitations as provided under Section 37(l)(b) of the NDPS Act and on this ground alone the bail deserves to be cancelled. 11. So far the submission of the learned Counsel for the respondent that the quantity of 1 kg. involved in the present case is non-commercial as per the definition of "commercial quantity" given under Section 2 (viia) read with notification dated 19.10.2001 and the two limitations prescribed under Section 37 are not applicable in the case of non-commercial quantity is concerned, it is without substance. Firstly, the quantity of 1 kg. is not non-commercial quantity and, secondly, even by applying the limitations under the Code of Criminal Procedure, the respondent is not entitled to bail. Firstly, the quantity of 1 kg. is not non-commercial quantity and, secondly, even by applying the limitations under the Code of Criminal Procedure, the respondent is not entitled to bail. The definition of commercial quantity as given under Section 2(viia) is as under: "(viia) "commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the official Gazette; whereas the distinction of "small quantity" as given under Section 2(xiiia) is as under : "Small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the official Gazette." 12. So far the notification dated 19.10.2001 is concerned, it specifies the quantity mentioned in column Nos. 5 and 6 of the table as small and commercial quantity respectively in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in columns 2 to 4 of the said table. Cannabis and cannabis resin (Charas, Hashish) are given at Sr. No. 23 and the small quantity thereof is 100 grams whereas commercial quantity is 1 Kg. It is correct that under the definition of the commercial quantity it is prescribed that any quantity greater than the quantity specified in the notification is a commercial quantity and any quantity lesser than the quantity specified in the notification is smaller quantity, but it does not mean that commercial quantity should be more than 1 kg. and small quantity less than 100 grams. In other words, the "commercial quantity" is 1 kg. and above and small quantity is 100 grams and less than 100 grams. The words greater or smaller than the quantity specified in the notification cannot be construed in such a manner as to make the commercial and small quantity as specified in the notification as non-commercial. Though there is no definition of non-commercial quantity, yet the quantity less than commercial quantity but greater than small quantity as referred to in Sections 20, 22 and 23 may be termed as non-commercial. In view of these provisions, non-commercial quantity will be from 101 grams to 999.999 grams. Therefore, the quantity 1 kg. Though there is no definition of non-commercial quantity, yet the quantity less than commercial quantity but greater than small quantity as referred to in Sections 20, 22 and 23 may be termed as non-commercial. In view of these provisions, non-commercial quantity will be from 101 grams to 999.999 grams. Therefore, the quantity 1 kg. involved in the present case is commercial quantity and the limitations as prescribed under Section 37(l)(b) are applicable which have not been kept in view while granting bail by the Additional Sessions Judge and on this ground alone bail deserves to be cancelled. 13. The submission of the learned Counsel for the respondent that as held by the Supreme Court in Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 Supreme Court 372, followed in Chhotu v. State of Maharashtra, 1995 Criminal Law Journal 875, and further in Subhendu Mishra v. Subrat Kumar, AIR 1999 Supreme Court 3026, there should be very cogent and overwhelming circumstances for cancellation of the bail and the grounds for cancellation of bail, broadly illustrative and not exhaustive, are interference or attempt to interfere with the due course of administration of justice; evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner, which are not available in the present case, has been duly answered in the recent judgment of the Supreme Court in Puran v. Rambilas and another, (2001) 6 Supreme Court Cases 338, wherein the learned Judges were dealing with exactly the same argument based on the principles laid down in Daulat Ram v. State of Haryana, (1995) 1 SCC 237. According to learned Judges: "10.....One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected." Further in paragraphs 11 and 13 it is held: "11. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected." Further in paragraphs 11 and 13 it is held: "11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has mis-conducted himself or because of some new facts requiring such cancellation... "13. Our view is supported by the principles laid down in the case of Gurcharan Singh v. State (Delhi Administration). In this case it has been held by this Court that under Section 439(2), the approach should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere." [Emphasis supplied] 14. In view of the law laid in these judgments of Supreme Court the case in hand falls in the category of cases in which the order granting bail is vitiated for the reasons that it is against Section 37(l)(b), arbitrary and result of wrong appreciation of facts and law and wrong exercise of discretion. 15. The Additional Sessions Judge has totally misdirected himself in appreciating the facts and in applying the law thereto to grant bail to the respondent. He has not cared to notice that prima-facie it was a case of chance recovery and not of prior information and Sections 42 and 50 are not attracted. In State of Punjab v. Baldev Singh, (1999) 6 Supreme Court Cases 172, it is held : "On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." (Also see Sajan Abraham v. State of Kerala, (2001) 6 Supreme Court Cases 692). 16. 16. Above all, at the stage of consideration of bail application, the Additional Sessions Judge was not required to assess the material on record as it is done after the trial at the time of final hearing, as it would amount to pre-judging the matter without giving opportunity to the prosecution to produce the evidence in support of its case. He was only required to find out whether believing the material on record as correct, the respondent can be held guilty of the offence alleged against him. By now it is well settled that the detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bail applications to avoid the impression created on a party that its case has been prejudiced. 17. The result of above discussion is that there is merit in this revision petition and it is allowed and the impugned order dated 9.4.2002 passed by the Additional Sessions Judge (II), Kangra at Dharamshala in bail application No. 61-N/2002 is quashed and set aside and the respondents directed to surrender to his bail bonds by or before 15.11.2002, failing which the Additional Sessions Judge (II), Kangra at Dharamshala is directed to take steps for taking him into custody in accordance with law. Revision allowed.