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2011 DIGILAW 914 (CAL)

Zonal Director v. Badar Ali

2011-07-12

ASHIM KUMAR ROY, J.N.PATEL

body2011
JUDGMENT 1. THE Judgment of the Court was as follows : Heard the learned Counsel appearing for the parties. 2. THIS is an application filed by the Zonal Director, Eastern Zonal Unit, Narcotic Control Bureau i.e. the original complainant for cancellation of bail of the respondents/accused persons, Badar Ali and Jognarayan Pan, which was granted to them by the learned Judge of the Special Court under N.D.P.S. Act, Murshidabad in N.D.P.S. Case No. 66 of 2009 by order dated 21st April, 2010. It is the contention of the petitioner that on getting specific information Narcotic Control Bureau Officials accosted and searched the respondents / accused persons in front of 'Prince Dhaba' at National Highway (NH 34) near Omarpur More, District - Murshidabad in presence of independent witnesses on 2nd December, 2009. On their search 1.3 kgs. of heroin was recovered from the possession of accused No. 1, which was handed over to him by accused no. 2. In the search they also recovered two mobile phones and as respondents were not in a position to produce any document in support of unlawful possession of the aforesaid quantity of heroin, they came to be arrested under Section 43 of the NDPS Act. 3. IT is the contention of the petitioners that samples were drawn from the seized goods and were kept in separate bag duly sealed and labeled by the opposite party and signature of the respondents were obtained and the samples so collected was sent to Forensic Science Laboratory for chemical examination. The respondents were also served notice under Section 67 of the NDPS Act and their statements came to be recorded. On the next date i.e. 3rd December, 2009 the respondents/opposite parties were produced before the learned Judge of the Special Court under NDPS Act, Murshidabad for seeking their remand in jail custody. In the meantime, the petitioner received the report of the chemical examiner showing that the sample is positive to the test of heroin. 4. ON 21st April, 2010 the respondents moved an application for bail before the learned Judge, which was pleased to pass the impugned order which reads as under: "Both accd. Badar Ali and Yognarayan Pan are produced from J/C. Both the accd. Persons file a petition praying for bail on the ground stated therein. Learned Special Public Prosecutor as well as learned Defence lawyer for accd. BadarAli and Yognarayan Pan are present. Badar Ali and Yognarayan Pan are produced from J/C. Both the accd. Persons file a petition praying for bail on the ground stated therein. Learned Special Public Prosecutor as well as learned Defence lawyer for accd. BadarAli and Yognarayan Pan are present. Bail petn. In respect of both the aforesaid accd persons is taken up for hearing. Heard. Learned Special Public Prosecutor and Id. Defence lawyer. Ld. Special Public Prosecutor raises strong objection in the matter of bail. I have gone through the bail petn. Wherefrom I find that no bail petn. Was ever filed before the Hon'ble Court inrespect of the aforesaid two accd.persons. That apart record reflects that the accd.persons are in custody on and from 3.12.09 and I have also gone through the report of N.C.B. EZU, Kolkata dated 24.2.2010. Considering the above position and having due regards to the prolonged period of detention of the accd. persons, I am not inclined to detain the accd.persons any further and as such both the accd. persons may find interim bail of Rs. 2,000/- each with two sureties of Rs. 1,000/-each and on condition that both the accd.persons shall not leave the District without the prior permission of this Court and shall see the seizing officer as and when called for i.d. to J/C till 4.5.2010. If on bail to date for appearance. Later: Bail bond furnished by surities Ashis Baran Lahiri and Pradip Kr. Chaki on behalf of the accd. Badar Ali and Yognarayan Pan which is accepted. Release the accds,. If not wanted in any other cases." It is, therefore, contended that the learned Judge of the Special Court has passed the impugned order without taking into consideration the provisions of Section 37 of the NDPS Act, which governs release on bail of an accused person, who is arrested for having committed offences under the said Act. It is further contended that the learned Judge failed to take into consideration the fact that the respondents/opposite parties were found in possession of 1.3 kgs. of heroin and thereby committed offences under Sections 21 (c) and 29 of the NDPS Act and, therefore they could not have been released on bail. 5. It is further contended that the learned Judge failed to take into consideration the fact that the respondents/opposite parties were found in possession of 1.3 kgs. of heroin and thereby committed offences under Sections 21 (c) and 29 of the NDPS Act and, therefore they could not have been released on bail. 5. ON the other hand, learned Judge of the Special Court proceeded to pass the impugned order on the premise that the respondents did not prefer any bail application since the time of their arrest and they are in custody on and from 3rd December, 2009 and considering the above position and having due regards to the prolonged period of detention of the accused persons, he was not inclined to detain the accused persons any further and as such both the accused persons may find interim bail of Rs. 2,000/- each with two sureties of Rs. 1,000/- each and on certain conditions. 6. IT is submitted that the learned Judge having failed to consider the strong objection raised by the learned Special Public Prosecutor on the basis of the case papers placed before him, ignored the specific provisions of law, which does not entitle the respondents to get bail in such case and particularly when the learned Judge has failed to record his satisfaction on the basis of materials available that there are reasonable grounds for believing that the accused persons are not guilty. Therefore, as the respondents/opposite parties have been granted, bail in contravention of provisions of Section 37(1)(b)(ii)(2) of the NDPS Act, the bail should be cancelled. Learned Counsel appearing on behalf of the respondents/opposite parties submitted that the respondents were falsely implicated in the case, the mandatory provisions of search and seizure were not followed and that at the stage the interim bail came to be confirmed the learned Special Public Prosecutor did not raise any objection. 7. IT is further submitted that the respondents have not abused the bail granted to them. Therefore, no case is made out under Section 439 (2) of the Code of Criminal Procedure to cancel their application for bail. IT is submitted that there is no error or illegality on the part of the learned Judge, Special Court in releasing them on bail. Therefore, the impugned order does not call for any interference by this Court. 8. Therefore, no case is made out under Section 439 (2) of the Code of Criminal Procedure to cancel their application for bail. IT is submitted that there is no error or illegality on the part of the learned Judge, Special Court in releasing them on bail. Therefore, the impugned order does not call for any interference by this Court. 8. WE have gone through the case papers, the complaint filed on 4th May, 2010 along with the documents like Test Report, Search cum Seizure list, memorandum of arrest of the respondents, C.A.'s report and other materials including voluntary statement recorded under Section 67 of the NDPS Act on 2nd December, 2009. Learned Counsel appearing for the petitioner has drawn our attention to the fact that all these documents were placed before the learned Court below at the time bail application of the respondents was taken up for consideration and, therefore, the observations made by the learned Judge of the Special Court as "having gone through the report of N.C.B. EZU, Kolkata dated 24th February, 2010" is not correct as no report was filed, but the case papers were made available to the Court. 9. IN Union of India v. Shiv Shanker Kesari, (2007)3 SCC (Cr) 505 this issue came up for consideration of Supreme Court and it was held:- "5. Section 37 of the Act reads as follows: "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 an 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 - (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 sub-section (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. (2) The limitations on granting of bail specified in Clause (b) of sub-section (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. As the provision itself provides that no person shall be granted bail unless the two conditions are satisfied. They are: the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable" "7. ...IN Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy." (See Municipal Corpn. Of Delhi v. Jagan Nath Ashok Kumar (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. 9. "9. ...It is often said that 'an attempt to give a specific meaning to the word "reasonable" is trying to count what is not number and measure what is not space'. The author of Words and Phrases (Permanent Edn.) has quoted from Nice and Schreiber, IN re to give a plausible meaning for the said word. "9. ...It is often said that 'an attempt to give a specific meaning to the word "reasonable" is trying to count what is not number and measure what is not space'. The author of Words and Phrases (Permanent Edn.) has quoted from Nice and Schreiber, IN re to give a plausible meaning for the said word. He says the expression "reasonable" is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'. It is not meant to be expedient or convenient but certainly something more than that." 10. The word "reasonable" signifies "in accordance with reason". IN the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd.) 11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion." 10. THIS is a shocking case where the learned Judge of the Special Court proceeded to grant bail to the respondents/accused by observing that "I have gone through the bail petition wherefrom I find that no bail petition was ever filed before the Hon'ble Court in respect of the aforesaid accused persons." Ignoring the fact that his predecessor in office has repeatedly rejected several applications for bail by orders dated 3.12.2009, 17.12.2009, 16.01.2010, 11.02.2010, 24.02.2010, 10.03.2010, 24.03.2010 and 06.04.2010 during the period of remand accused persons were in judicial custody. On going through the previous orders rejecting bail application along with the progress of the case during period of remand, it is crystal clear that there was no substantial change in the facts and circumstances of the case against accused persons to reconsider their application for bail and pass the impugned order except for the change in the Presiding Officer of the Special Court. 11. WE have no hesitation to hold that the learned Judge of the Special Court has committed a grave error in granting bail by recording that - "learned Special Public Prosecutor raises strong objection in the matter of bail. I have gone through the bail petn. Wherefrom I find that no bail petn. Was ever filed before the Hon'ble Court in respect of the aforesaid two accd.persons. That apart record reflects that the accd.persons are in custody on and from 3.12.09 and I have also gone through the report of N. C.B. EZU, Kolkata dated 24.2.2010." "Considering the above position and having due regards to the prolonged period of detention of the accd. persons, I am not inclined to detain the accd.persons any further and as such both the accd. persons may find interim bail of Rs. 2,000/- each with two sureties of Rs. 1,000/-each and on condition that both the accd. persons shall not leave the District without the prior permission of this Court and shall see the seizing officer as and when called for id. to J/C till 4.5.2010. If on bail to date for appearance." and having passed the impugned order by ignoring statutory bar to grant bail under the provisions of Section 37 of the NDPS Act, which necessarily require the learned Judge of the Special Court to examine whether there are reasonable grounds for believing that the accused persons were not guilty and they are not likely to commit any offence while on bail. Prima facie record reflects firstly, that the contraband seized from the respondents was found to be heroin as per C.A.'s report and, secondly the voluntary statement recorded under Section 67 of the NDPS Act clearly goes to show that the respondents were indulging in sale and purchase of narcotic drugs, particularly heroin and, therefore, they are potential offenders and in the event of their release on bail there is all likelihood of their indulging in committing similar offences. 12. 12. WE find that the learned Judge has considered the case of the respondents/opposite parties in a very casual manner without realizing the seriousness of the offence for which they have been arrested and released them on bail ignoring the case against accused and the strong objections taken by the learned Counsel for the petitioner herein and for extraneous consideration. It is pointed out to us by the learned Counsel appearing for the respondents that subsequently i.e., on 4th May, 2010, the day the bail came to be confirmed, the learned Special Public Prosecutor did not object to the same. This cannot be a ground for confirmation of bail, as learned Judge committed basic error in law in not adhereing to the provisions of Section 37 of the NDPS Act at the very first instance, when he granted interim bail in favour of accused in spite of strong objection by the learned Special Public Prosecutor and the confirmation was a mere formality. 13. IN the aforesaid facts and circumstances, we are inclined to cancel the bail granted by the learned Judge of the Special Court under the NDPS Act as the impugned order is passed without considering the express provisions of law as laid down under Section 37(1)(b)(ii)(2) of the said Act and, therefore, the order for granting bail to the respondents/opposite parties being illegal cannot be sustained. The impugned order is thus cancelled. The respondents are directed to surrender to their bail bonds within a week's time from the date of this order. On their failure to do so, the trial Court will cause their arrest and commit them to judicial custody pending trial. 14. IT will be open for the respondents to move trial Court for expediting their trial. Office is directed to send down the records to the Court below at once. 15. THUS, the application for cancellation of bail stands disposed of.