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2002 DIGILAW 785 (KAR)

SYED ABDUL ALA v. NARCOTIC CONTROL BUREAU

2002-12-17

K.SREEDHAR RAO

body2002
( 1 ) THIS petition is filed under Section 439 of Cr. P. C. , for grant of bail. ( 2 ) THE petitioner who is accused No. 1 along with 5 others charge-sheeted for committing offences punishable under Sections 8, 21, 25, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to N. D. P. S. Act for short) by the Narcotic Control Bureau, South Zone, Chennai, in Special Case No. 24/2000 on the file of the Sessions Judge, for N. D. P. S. , Bangalore City. The petitioner seeks bail on medical ground as well as on the ground of delay that trial is not concluded even after a lapse of 3 years. ( 3 ) SRI Hasmath Pasha, learned counsel appearing for the petitioner confines his arguments to grant bail on medical grounds without reference to merits or delay in conclusion of the trial. ( 4 ) SRI Urval Ramanand, Special Public Prosecutor for Central Government, filed detailed objections and opposed to grant bail. ( 5 ) THE contentions raised by the parties give rise to a serious and an interesting question of law regarding the limitations and the powers of High Court to grant bail under Section 439, Cr. P. C. , Sri Urval Ramanand relied on the ruling of the Supreme Court in Narcotic Control Bureau v. Kishanlal (reported in (1991) 1 SCC 705 : (1991 Cri LJ 654 ). In the concluding part of para 7 of the judgment, it is held thus :"from the above discussion it emerges that in Usmanbhai case the Supreme Court did not express anything contrary to what has been observed in Balchand Jain case and on the other hand, at more than one place observed that such enactments should prevail over the general enactment and the non-obstante clause must be given its due importance. For all the aforesaid reasons, we hold that the powers of High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly. The point of law is ordered accordingly. " ( 6 ) THE other decisions of the Supreme Court are cited at the bar to show the binding effect of Section 37 of the N. D. P. S. Act, in limiting the powers of the High Court while giving bail under Section 439 of Cr. P. C. In the decisions cited, the Supreme Court has held that the power of the High Court to grant bail under Section 439, Cr. P. C. , is subject to the limitation contained in Section 37 of the N. D. P. S. Act. In Kishan Lal's case, the provisions of Section 36-A (3), Section 37 of NDPS Act and Section 439 of Cr. P. C. , are adverted and discussed succinctly about the combined effect of the said provisions with regard to powers of High Court to grant bail. ( 7 ) SRI Hasmath Pasha, relied on the ruling of the Supreme Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat, reported in AIR 1988 SC 922 : (1988 Cri LJ 922), contends that the said decision, although rendered with reference to the provisions of TADA. The Supreme Court however elucidated the position of law that the power of the designated Court to grant bail, to an accused under TADA Act, if in custody, is derived from the Code and not from Section 20 (8) of the TADA Act, 1987 and Section 20 (8) should read only as a limitation qualifying the power to grant bail u/s. 439, Cr. P. C. Counsel further contended that the proposition of law laid down equally applies to the provisions of N. D. P. S. Act, the source of power to grant bail has to be found only under Section 439 of Cr. P. C. , and Section 37 of the NDPS Act should be read in to 439, Cr. P. C. , while considering the bail application for grant of bail. ( 8 ) FOR convenient reference, the provisions of Section 37 of the N. D. P. S. Act are extracted hereunder :"37. P. C. , and Section 37 of the NDPS Act should be read in to 439, Cr. P. C. , while considering the bail application for grant of bail. ( 8 ) FOR convenient reference, the provisions of Section 37 of the N. D. P. S. Act are extracted hereunder :"37. Offences to be cognisable 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 an offence punishable for a term of imprisonment of 5 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 oppose 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) Limitations on granting of bail specified in Clause (b) of sub-sec. (1) are in addition to 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. " ( 9 ) THE provisions of Sec. 37 of the N. D. P. S. Act makes a drastic departure from the conventional cannons of burden of proof of prima facie case against the accused on the prosecution even at the stage of bail. In respect of the offences under the N. D. P. S. Act, the onus is on the accused to prove the innocence/non-complicity in order to secure bail. The restrictions in Sec. 37 relates to prima facie material regarding the guilt of the accused. The powers of High Court to grant bail under Sec. 439 are quite wide and discretionary. Notwithstanding a prima facie case of guilt, under exceptional circumstances, the High Court in its discretion can grant bail. The embargo placed u/s. 37 of the N. D. P. S. Act operates only when the Court is considering the bail application on merits. Thus, the provisions of Section 37 does not clamp or cap the powers of High Court to grant bail u/s. 439 in its entirety. In other words Section 37 operates only as partial eclipse on the powers of the High Court. Thus, the provisions of Section 37 does not clamp or cap the powers of High Court to grant bail u/s. 439 in its entirety. In other words Section 37 operates only as partial eclipse on the powers of the High Court. While deciding the application on merits with reference to prima facie material of guilt then only the provisions of Section 37 operate and they have to be read into the provisions of Section 439, Cr. P. C. When the bail is to be granted on other extenuating circumstances or humanitarian ground like the medical ground, the powers of the High Court u/s. 439 are not curtailed. The provisions of Section 37 does not act as a blanket ban on the powers of the High Court u/s. 439, Cr. P. C. ( 10 ) ON careful reading of the decisions of the Supreme Court in Kishan Lal's case, I find that there is no ratio laid down to the effect declaring that Section 37 of the N. D. P. S. Act, operates as a total blanket ban on the powers of High Court under Section 439 of Cr. P. C. In the present case, the accused is seeking bail on medical grounds and the Court is considering the case of the petitioner dehors, prima facie material of guilt placed by the prosecution. On such humanitarian considerations, the powers of High Court under Section 439 of Cr. P. C. , to grant bail is not eroded or affected by the provisions of Section 37 of N. D. P. S. Act. ( 11 ) SRI Urval Ramanand, relied on the rulings of the Supreme Court, reported in AIR 1984 SC 1503 : (1984 Cri LJ 1211) (The State (through Deputy Commissioner of Police Special Branch), Delhi v. Jaspal Singh), contends that the medical ground pleaded does not offer sufficient excuse for the petitioner to seek bail. In the said decision despite the fact that the accused had undergone cardiac operation, the Supreme Court observed that the prison authorities will make necessary proper arrangements to provide the required treatment to the accused. Under the peculiar circumstances, the Supreme Court found that it is not desirable to grant bail in the national interest and also made observations that the prison authorities could provide him required treatment. ( 12 ) IN the present case, the medical reports are produced. Under the peculiar circumstances, the Supreme Court found that it is not desirable to grant bail in the national interest and also made observations that the prison authorities could provide him required treatment. ( 12 ) IN the present case, the medical reports are produced. The petitioner is suffering from serious heart ailment and there is 90% blockage of his arteries, immediate By-Pass Surgery is advised. Even after By-Pass Surgery, the post-operative care and treatment is necessary. A patient undergoing By-pass Surgery cannot have brisk and risky movements. In that view, I find that the petitioner at the time of operation and after the operation for substantial time has to remain docile. It may not be probable that the petitioner would make any drastic physical efforts to abscond hazarding his life. Accordingly, I pass the following order. ( 13 ) THE petition is allowed. The petitioner is granted limited bail for a period of 3 months from today, on executing a bond for Rs. 1,00,000/- with a like surety before the trial Court. The petitioner is entitled to get himself operated and treated at the hospital of his choice and he should inform the trial Court about the place of treatment before he is released on bail. The Audugodi police, shall keep police surveillance on the petitioner at the place where he is taking treatment. The petitioner is directed not to tamper with the prosecution witnesses. After limited period of 3 months, the accused shall surrender before the trial Court. Sri Hasmath Pasha, learned counsel submits that necessary applications would be made before the trial Court to proceed with the trial even in the absence of the petitioner without disputing the say of witnesses regarding the personal identity of the petitioner during the course of trial. The trial Court shall expedite the disposal of the case within three months from the date of this order, on day to day basis. Request for hand delivery of the operative portion of the order is granted. The Registry is directed to send a copy of this order to Adugodi Police for compliance. Petition allowed. --- *** --- .