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Meghalaya High Court · body

2014 DIGILAW 218 (MEG)

Badahun Shisha Kharbuli v. State of Meghalaya

2014-09-11

S.R.SEN

body2014
Judgment Sudip Ranjan Sen, J. 1. This instant bail application has been filed under Section- 37 of the NDPS Act, 1985 r/w. Section- 439 Cr.P.C. 2. The petitioner's case in nut shell is that, "the accused person Shri. Shanborlang Jala was arrested on 08.07.2014 in connection with Mawlai PS Case No. 56(7) of 2014 U/s. 20(b)(ii)(B) NDPS Act, 1985 which was initiated with the strength of the FIR dated 08.07.2014. Considering the case of the accused person, four Bail Petitions was moved before the Special Judge (NDPS), Shillong for enlarging the accused person on bail. However, the four bail applications were rejected by the said Court vide its order dated 11.07.2014, 20.07.2014 & 28.08.2014 by holding that the accused person may interfere with the investigation, if release on bail. Hence, the petitioner being aggrieved has preferred this Bail Application U/s. 439 r/w. Section 37 of NDPS Act, 1985 before this Hon'ble Court for enlarging the accused person to go on bail". 3. Mr. R. Gurung, learned counsel appeared for on behalf of the petitioner submits that, the accused person namely; Shri. Shanborlang Jala was arrested on 08.07.2014 in connection with Mawlai PS Case No. 56(7) of 2014 U/s. 20(b)(ii)(B) NDPS Act, 1985 and since then he was in custody and at present in judicial custody. The learned counsel further argued that, the recovered contraband item in question is called Cannabis (Ganja) weighing about 1 Kg which is definitely a small quantity. The accused is in custody for more than 60 days, besides that he is a local person and his chance of absconding is impossible. Moreover, the accused is ready to cooperate with the investigation and face the trial as and when necessary, so he may be allowed to go on bail with any condition. 4. On the other hand, Mr. P. Yobin, the learned State counsel has fairly submitted that as per the weighing report, the quantity involved is 1007 grams approximately and also produced the CD before this Court and further submitted that, the Court may pass necessary order as deemed fit and proper. 5. After hearing the submissions advanced by the learned counsel for the parties and after perusal of CD, it appears that the recovered quantity is between small quantity and commercial quantity. As per the Schedule 1000 gram is considered as small quantity and 20 Ks above is considered as commercial quantity. 6. 5. After hearing the submissions advanced by the learned counsel for the parties and after perusal of CD, it appears that the recovered quantity is between small quantity and commercial quantity. As per the Schedule 1000 gram is considered as small quantity and 20 Ks above is considered as commercial quantity. 6. While granting bail under NDPS Act, Court is guided by Section- 37 of NDPS Act, 1985 which is reproduced herein below: "37. (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 (12 of 1974), or any other law for the time being in force on granting of bail." 7. On bare perusal of Section- 37 of NDPS Act, it is understood and clear that, while granting bail under NDPS Act prosecution must be given an opportunity to hear. Secondly and the most important fact is, the Court must satisfy itself that the accused is not involved in the case and that he will not commit such offence even if he is released on bail. In this instant case, the quantity involved is between small quantity and commercial quantity and penalty is guided by Section 20(B) of NDPS Act which speaks that, when quantity involved is in between small quantity and commercial quantity, punishment may extend to 10 years and with a fine of Rs. 1 lakh. 8. On perusal of the provision referred to above, it is clear that punishment prescribed under Section 20(B) is discretionary and not mandatory, Court may punish a person in such a case for 6 (six) months, 1 (one) year or 10 (ten) years, that depends upon the Court concerned. 1 lakh. 8. On perusal of the provision referred to above, it is clear that punishment prescribed under Section 20(B) is discretionary and not mandatory, Court may punish a person in such a case for 6 (six) months, 1 (one) year or 10 (ten) years, that depends upon the Court concerned. If it is so, I am of the opinion, that charge-sheet should be submitted before the Court within 60 days as per the Provision-167 Cr.P.C. Further, in my view Provision under NDPS Act cannot supersede Provision under Section- 167 Cr.P.C. In this instant case, it is an admitted fact that charge-sheet has not been filed till date, however, Section- 36.A Sub-section (4) made it clear that: "36. A (4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days." 9. So, on bare perusal of the Provision referred to above, it is clear that, generally investigation involving commercial quantity needs to be completed within 90 days, however, in special cases it may be extended to 180 days which may be further extended to 1 (one) year provided prosecution made application giving details progress of the case as well as sufficient reasons for such detention. 10. In this instant case, nothing has been placed before the Court with sufficient reasons to satisfy that further detention is necessary. I also mentioned that, if investigation involved commercial quantity, time is limited up to 90 days except in exceptional cases where 180 days or 1 year is applicable as discussed above. In cases of quantity between small quantity and commercial quantity, it should be 60 days. 11. I also mentioned that, if investigation involved commercial quantity, time is limited up to 90 days except in exceptional cases where 180 days or 1 year is applicable as discussed above. In cases of quantity between small quantity and commercial quantity, it should be 60 days. 11. On further perusal of the CD and the order dated 03.09.2014, I find that the Court has remanded the accused without prayer of the IO for remand. The order is reproduced herein below: "Spl. Case No. 13/2014 State vrs. Shri. Shanborlang Jala 03.09.2014 ORDER Record put up. Accused Shanborlang Jala produced from hazat. No remand report from the I/O. I.O. to ensure that remand report should be submitted on every remand date. Accused is implicated under NDPS Act and considering the nature of the offence and materials available on record the accused is remanded back to hazat. Fix 17.09.2014 for production. Sd/- Special Judge (NDPS) Shillong" 12. On further perusal of the said impugned order, I am of the view that, the learned Special Judge (NDPS) has passed the order whimsically and without applying his judicious mind. I also could not understand how the Court remand a person at the investigation stage without a prayer for remand. It is also not the duty of the Court to direct the IO to file the remand report which basically and totally against the principle of criminal jurisprudence. The Court cannot stand on the feet of the IO otherwise it will totally fail to impart justice. Hon'ble Apex Court in the case of Manubhai Ratilal Patel vrs. State of Gujarat & Ors. reported in : (2013) 1 SCC 314 (Para-24) was pleased to observed that: "24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hour. It enables the magistrate to see that the remand is really necessary. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hour. It enables the magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner." 13. For the reasons as discussed above taking into consideration the submissions advanced by the learned counsel for the parties as well as the information gathered from the CD, I do not see in this instant case why bail cannot be considered specially when the charge-sheet has not been filed within the specific time frame nor any reasons has been assailed before this Court. Moreover, as per the order dated 03.09.14 the IO did not make any prayer for remand which shows that the IO is not interested for further detention. Therefore, the accused is allowed to go on bail for a sum of Rs. 60,000/- with 1 (one) surety of the like amount subject to the satisfaction of the learned Special Judge (NDPS) with the following conditions: i) The accused person shall cooperate with the IO concerned as and when necessary for the purpose of investigation. ii) The accused person shall not interfere or tamper with any evidence. iii) The accused person shall not indulge in any act of committing offences in future. iv) The accused person shall be bound to face the trial as and when necessary. 14. Court Master is directed to return the CD to the learned State counsel along with copy of this order. 15. With these observations and directions, this instant Bail Application is allowed and the matter stands disposed of.