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Gauhati High Court · body

2017 DIGILAW 1270 (GAU)

Lalthansangi v. State of Mizoram

2017-09-08

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : 1. Heard Mr. Zoramchhana, learned counsel for the petitioners. Also heard Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor for the State. 2. The petitioners have been arrested as they were found to be in alleged possession of heroin weighing 555 grams, while coming from Zokhawthar to Melbuk on a bike. 3. Thereafter, Champhai Police Station Case No. 13/2017 under sections 21(c) and 29 of the ND&PS Act, 1985 was registered against the petitioners. The petitioners, who were arrested on 9.2.2017 preferred a bail application vide Bail Application No. 876/2017. 4. The Special Court, ND&PS, Champhai vide order dated 29.6.2017 allowed the Bail Application No. 876/2017 on “Humanitarian Grounds” with the following conditions: “1. Bailor/surety must be a government servant under Government of Mizoram not below the rank of LDC duly certified to this effect by his controlling Officer posted at Champhai town itself. 2. Bail bond amount be Rs. 2,00,000 each and be deposited with this Court as a Security for their Court appearance. 3. Attend court regularly and non-obedience to this order shall entail cancellation of bail bond without hearing them.” 5. The petitioners have approached this court by way of a revision petition under sections 401 and 440, Cr.PC, praying for modification of the bail conditions, on the ground that the petitioners are unable to find the surety or to deposit the bail amount of Rs. 2 lakhs. 6. The petitioners counsel submits that the petitioner No. 1, who is a lady, was arrested after sunset and before sunrise by the Police without any permission being taken from the Magistrate concerned. He also submits that there has been violation of other mandatory provisions of law while making the seizure and arrest. 7. The petitioner's counsel submits that in view of the above facts, the imposition of the conditions by the learned Special Court ND&PS, Champhai amounts to denial of bail to the petitioners. 8. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor submits that the present case being a Revision, this Court can go into the legality of the order passed in the Bail Application. As the seized heroin is of a commercial quantity, section 37 of the ND&PS Act would apply and that bail cannot be granted in violation of the section 37 of the ND&PS Act. 9. I have heard the learned counsels for the parties. 10. As the seized heroin is of a commercial quantity, section 37 of the ND&PS Act would apply and that bail cannot be granted in violation of the section 37 of the ND&PS Act. 9. I have heard the learned counsels for the parties. 10. The seized heroin is of commercial quantity and section 37 of the ND&PS Act would have to be applied in matters regarding bail. 11. Section 37 of the ND&PS Act states 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 2 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— (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.” 12. A perusal of section 37 of the ND&PS Act clearly goes to show that the Special Court ND&PS can release a person on bail if 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. 13. In the present order dated 29.6.2017, issued by the Special Court ND & PS in Bail Application No. 876/2017, the Court has not stated that it is satisfied that there are reasonable grounds for believing the petitioners to be not guilty of the offence. Section 37 of the ND & PS Act does not allow for taking into consideration grant of bail on “Humanitarian Grounds”. When a statute requires something to be done in certain manner, that thing has to be done in that manner or not at all. Section 37 of the ND & PS Act does not allow for taking into consideration grant of bail on “Humanitarian Grounds”. When a statute requires something to be done in certain manner, that thing has to be done in that manner or not at all. Other methods or performance are forbidden. 14. In the case of Union of India v. Rattan Malik, (2009) 2 SCC 624 , the Apex Court has held “It is plain from a bare reading of the non-obstante clause in section 37 of the ND&PS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the ND&PS Act is not only subject to the limitations imposed under section 439 of the Code of Criminal Procedure, 1973, but also subject to the restrictions placed by clause (b) of subsection (1) of section 37 of the ND&PS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions, viz., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on “reasonable grounds”. The expression “reasonable grounds” in section 37(1)(b)(ii) has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the ND&PS Act. While considering an application for bail under section 37 of the ND&PS Act, the court is not called upon to record a finding of “not guilty”. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the ND&PS Act. While considering an application for bail under section 37 of the ND&PS Act, the court is not called upon to record a finding of “not guilty”. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the ND&PS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offences he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. It is evident that the circumstances which have weighed with the High Court to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years; and (iii) that there is no chance of his appeal being heard within a period of seven years. These circumstances may be relevant for grant of bail in matters arising out of conviction under the Indian Penal Code, 1860, etc., but are not sufficient to satisfy the mandatory requirements as stipulated in section 37(1)(b) of the ND&PS Act. Merely because nothing was found from the possession of the respondent, it could not be said that the respondent was not guilty of the offences for which he had been charged and convicted. The impugned order having been passed ignoring the mandatory requirements of section 37 of the ND&PS Act, cannot be sustained. Hence, the matter remitted back to the High Court for fresh consideration of the bail application keeping in view the parameters of section 37 of the ND&PS Act.” 15. Though the present revision petition has been filed for modification of the bail order, this court is also going into the legality of the order passed by the Special Court, ND&PS, Champhai under section 482, Cr.PC. 16. Though the present revision petition has been filed for modification of the bail order, this court is also going into the legality of the order passed by the Special Court, ND&PS, Champhai under section 482, Cr.PC. 16. In view of the law laid down by the Apex Court, this court finds that the order dated 29.6.2017 passed in Bail Application No. 876/2017 is an illegal order as it is not in compliance of section 37 of the ND&PS Act. 17. Accordingly, the order dated 29.6.2017 passed in Bail Application No. 876/2017 is hereby set aside. The petitioners are, however, at liberty to file a fresh petition for bail before the Special Court, ND&PS Champhai under section 37 of the ND&PS Act. 18. The revision petition is dismissed. Send back the LCRs.