RASHEED v. STATE BY SANTHPUR POLICE, AURAD TALUK, BIDAR DISTRICT
2007-02-21
MOHAN M.SHANTANAGOUDAR
body2007
DigiLaw.ai
ORDER Petitioners are accused in Crime No. 62 of 2006 (FIR No. 21 of 2006) of Santapur Police Station, Aurad Taluk, registered for the offences punishable under Sections 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act' for short). These petitioners were found transporting 224 kgs. of ganja contained in six gunny bags in a Scorpio car on 11-6-2006 at about 10.30 a.m. The police have seized the ganja as well as the aforesaid vehicle used for transportation. The petitioners are apprehended along with the drug after chasing for certain distance when they tried to escape. They have filed this petition praying for the relief of releasing them on bail. 2. Sri Sharanabasappa, learned Counsel appearing for the petitioners submits that the police did not file charge-sheet till the expiry of 180 days from the date of arrest of the petitioners and that therefore, the petitioners should be released on bail. The said submission is opposed by Sri Siddagangaiah, learned Government Pleader appearing for the respondent-State. 3. The records disclose that the petitioners have filed application for bail on 183rd day before the Court below. At the time of filing the objections, the State Public Prosecutor prayed for extension of time to complete the investigation. Though no separate application is filed praying for extension of time to complete the investigation, the State Public Prosecutor in his statement of objections to the bail petition, requested in one paragraph for extension of time to complete the investigation. Based on such prayer, the Court below has extended the time for two months for filing the charge-sheet. However, the bail petition filed by the petitioners is dismissed by the very order. Hence, this petition is filed praying for bail. It is contended by learned Counsel for the petitioners that the petitioners are entitled to be released on bail as the investigation is not completed within 180 days from the date of arrest of the petitioners, and that the prayer of seeking extension of time to complete the investigation is made beyond 180 days. According to the learned Counsel for the petitioners the said prayer should have been made by the State Public Prosecutor before 180 days and not beyond 180 days.
According to the learned Counsel for the petitioners the said prayer should have been made by the State Public Prosecutor before 180 days and not beyond 180 days. 3-A. As could be seen from the provisions of Section 36-A(4) of the NDPS Act, the Magistrate may authorise detention of the accused person for custody for a total period exceeding 180 days, if the investigation cannot be completed by that time. The proviso to sub-section (4) of Section 36-A of the NDPS Act makes it further clear that, if it is not possible to complete the investigation within the period of 180 days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 180 days. The provision in sub-section (4) of Section 36-A of the NDPS Act is exception to the general rule contained in Section 167(2) of Criminal Procedure Code, 1973. The NDPS Act is enacted for the purpose of declaring law relating to narcotic drugs to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of the property derived from or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of international conventions of narcotic drugs and psychotropic substances and for the matters connected therewith. This is a special enactment covering the aforesaid subject and thus the provisions contained in NDPS Act shall naturally override the provisions of Criminal Procedure Code wherever the provisions of Criminal Procedure Code are contrary to the provisions of the NDPS Act. Section 37(1)(b) of the NDPS Act specifies that the person accused of the offences punishable under Section 19 or 24 or 27 -A of the NDPS Act shall not be released on bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences. Thus, it is incumbent on the Court to record its satisfaction that there are reasonable grounds to believe that the accused is not guilty of the offences charged while releasing the accused on bail. The expression "reasonable grounds" as used in Section 37 of the Act means something more than prima facie grounds. 4.
Thus, it is incumbent on the Court to record its satisfaction that there are reasonable grounds to believe that the accused is not guilty of the offences charged while releasing the accused on bail. The expression "reasonable grounds" as used in Section 37 of the Act means something more than prima facie grounds. 4. This provision again is exception to the general provisions regarding bail matters found in Sections 437 and 439 of Cr. P.C. Looking to the scheme of the Act, it is clear that negation of bail is a rule and grant of bail is an exception. Liberal approach in the matter of bail under NDPS Act is uncalled for. 5. The offences under NDPS Act are very serious and grave having deleterious effect on the health of the people and therefore, such offences always are to be dealt with a heavy hand and a person found committing such offences normally does not deserve to be released on bail. As has been held by the Apex Court in the case of Narcotics Control Bureau v Kishan Lal and Others1, unless the condition prescribed under Section 37 of the NDPS Act is fulfilled, the accused cannot be released on bail. The Court, including High Court, has no discretion to relax these conditions in order to give the benefit of bail to an accused. All these things have become necessary because the offences under the Act have the potentiality to cause injury to the society as a whole as compared to other offences under other laws. There can be no relaxity in enforcement of the provisions. Therefore, if the accused is allowed to go on bail on any technical plea, that would defeat the very purpose of law. 6. With the aforesaid background and looking to the intention of the Legislature, the effect of provision to Section 36-A of the NDPS Act will have to be considered. As aforementioned, a contention is advanced on behalf of the petitioner that the Court can extend the period of detention up to one year only if an application is filed by the Public Prosecutor within 180 days explaining the progress of investigation and the specific reasons for detention of the accused beyond the period of 180 days.
As aforementioned, a contention is advanced on behalf of the petitioner that the Court can extend the period of detention up to one year only if an application is filed by the Public Prosecutor within 180 days explaining the progress of investigation and the specific reasons for detention of the accused beyond the period of 180 days. But, this Court is of the considered view that the said contention cannot be accepted, particularly in the light of the scheme of the Act and the intention of the Legislature. Even the language used in the proviso makes it amply clear that Public Prosecutor may file a report before the Special Court for extending the time up to one year in case if the investigation could not be completed within 180 days. It means that the Public Prosecutor may wait till 180 days for the investigating authority to complete the investigation. It is only thereafter he may file necessary report as required under proviso to sub-section (4) of Section 36-A of NDPS Act before the Special Court requesting the Court to extend the time of detention up to one year for the purpose of completion of investigation. During the course of investigation, the presence of the accused may be necessary under certain circumstances. Thus, if in the interest of investigation, the bail has to be rejected, then, the Court will reject the bail application. In case of serious offences, the Court must be fully alert that the investigating agency is not obstructed or interfered with. Under such circumstances, it is not possible for this Court to hold that the application of the Public Prosecutor along with the report should be filed within 180 days of the detention of the accused. If the contention of the petitioners is accepted, then, the intention of the Legislature in extending the time of detention up to one year will be frustrated. Added to it, the plain language used in the proviso to sub-section (4) of Section 36-A of the NDPS Act would amply make it clear that the Public Prosecutor may file report intimating the progress of investigation and specific reasons for detention of the accused beyond 180 days only if it was not possible for the investigating authorities to complete the investigation within the said period of 180 days.
If the Prosecutor makes prayer for extension of time for keeping the detenue in custody prior to the release of detenue on bail, the Court may grant such prayer, in the interest of justice. In the matter on hand also, the Prosecutor has prayer for extension of time during the period of detention of the detenue. 7. In view of the above, the order passed by the Court below in extending the period of detention beyond 180 days is perfectly legal and justified. Hence, no interference is called for. Petition is accordingly dismissed.