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2019 DIGILAW 422 (ORI)

Md. Jalil v. State of Odisha

2019-06-25

S.PUJAHARI

body2019
ORDER : S. Pujahari, J. 1. Heard the (earned counsel for the petitioner and the learned counsel for the State. 2. The petitioner being in custody in Special G.R. Case No. 2 of 2019, arising out of Rourkela G.R.P.S. Case No. 67 of 2019, pending in the court of the learned 1st Addl. Sessions Judge-cum-Special Judge, Rourkela, has filed this petition for his release on bail. The offence alleged against him is punishable under Section 21(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act"). 3. As it appears, the petitioner has been indicted in the aforesaid case for seizure of 3.280 grams of brown sugar which is small quantity and the offence alleged prescribes punishment on conviction for rigorous imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both. When the petitioner moved for his release on bail before the learned 1st Addl. Sessions Judge-cum-Special Judge, Rourkela, his prayer for bail has been refused by the learned 1st Addl. Sessions Judge-cum-Special Judge, Rourkela on the ground that Section 37 of the N.D.P.S. Act speaks that offence is cognizable and non-bailable in nature and the investigation is in progress. 4. The learned counsel appearing for the petitioner assails such order to be untenable inasmuch as the punishment prescribed under Section 21 (a) of the N.D.P.S Act prescribes imprisonment for one year only. The petitioner being a permanent resident of Odisha having his moors in the society as such has no chance of ascendance and least is the chance of his influencing the investigation as the witnesses in the case are all Police Officials and the gist of the offence charged is the possession of the contraband narcotic drugs which stated to have been already seized from his possession. 5. Par contra, the learned counsel for the state however defended the order to be just and proper advancing the submission that the petitioner has been indicted in an offence of trafficking of narcotic drugs which is an offence against the society and as such, in the larger public interest he does not deserve to be released on bail, notwithstanding a lenient punishment provided for such offence. 6. 6. To appreciate the contention of the parties on the question of sustainability of such order of rejection of prayer for bail made by the learned Special Judge, it would be apposite to have a look on the statutory provisions contained in the Code of Criminal Procedure, so also N.D.P.S. Act inasmuch as the learned Special Judge has held the offence to be non bailable taking note of Section 37 of the N.D.P.S. Act. 7. The Code of Criminal Procedure, 1973 in its Section 2(a), 4 and 5 of reads as thus:- "2(a) "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and non-bailable offence means any other offence; 4. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." "5. Saving,- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 8. A bare perusal of the aforesaid provisions would go to show that offences under the Indian Penal Code required to be investigated and tried according to the provisions contained in the Cr.P.C., so also the offences under other laws are also required to be investigated, inquired into and tried according to the Cr.P.C., subject to the provisions contained in the special statute with regard to investigation, inquiry and trial and otherwise dealing with such offence. The Cr.P.C. in Clause-II of the First Schedule deals with the classification of the offences with regard to the cognoscibility, non-cognoscibility, bailable and non-bailable and also the Forum of trial of the offences under the I.P.C. and other laws. 9. The Cr.P.C. in Clause-II of the First Schedule deals with the classification of the offences with regard to the cognoscibility, non-cognoscibility, bailable and non-bailable and also the Forum of trial of the offences under the I.P.C. and other laws. 9. So, unless the classification of the offences committed under the special statute/other laws prescribe therein, the same has to be dealt with as per the Clause-II of the First Schedule of the Cr P.C. which speaks that when an offence is committed under any other law prescribe punishment for death, imprisonment for life or imprisonment for more than seven years, the same is cognizable, non-bailable and triable by the Court of Sessions and when the offence is punishable for imprisonment of three years and upward, but not more than seven years, the same is also cognizable, non-bailable and triable by the Magistrate First Class. However, when an offence prescribes punishment for less than three years or with fine only, the same is non-cognizable, bailable and triable by any Magistrate. 10. In respect of offences under the N.D.P.S. Act, Section 36A speaks as follows:- "36A. Offences triable by Special Courts. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; 11. Therefore, the forum prescribed for trial for offences under the N.D.P.S. Act punishable for more than three years is the Special Court "constituted under the Act and in respect of the offences with punishment of less than three years, the same as such has to be tried by any Magistrate as envisaged in Clause-II of First Schedule of the Cr.P.C. 12. Section 37 of the N.D.P.S. Act in its headnote though speaks all offences under the Act to be non bailable but in the body of the section it is envisaged that notwithstanding anything contained in the Cr.P.C. every offence punishable under this act shall be cognizable but silent about the offence being bailable or non bailable. Section 37 of the N.D.P.S. Act in its headnote though speaks all offences under the Act to be non bailable but in the body of the section it is envisaged that notwithstanding anything contained in the Cr.P.C. every offence punishable under this act shall be cognizable but silent about the offence being bailable or non bailable. As a necessary corollary therefore, it has to be guided by the Clause-II of First Schedule of the Cr.P.C. taking note of the punishment prescribed. The punishment prescribed being imprisonment for one year as such is a bailable one, but as it appears the Learned Special Judge in this case being swayed away by the headnote of Section 37 of the N.D.P.S. Act held the offence to be non-bailable in nature. The said conception of the learned Special Judge is fallacious one, inasmuch as in interpretation of statutes, when the enacted provisions of the statute in the body of the statutory provision leads to a particular conclusion, the headnote or the objects and reasons cannot nullify or modify the effect of the enacted provisions in the body of the statute. It is only when there is confusion or ambiguity arising from the words used in the statutory provisions, resort can be taken to the headnote and/or objects and reasons. So when the statutory provision is clear, cogent and unambiguous, it is impermissible to resort to external aids like headnote, marginal note or the objects and reasons to come to a conclusion contrary which the reading of the statutory provision yields. The Maxwell Interpretation of Statutes (in its 12th edition, p. 11) in this regard states as follows:- "They (headings) cannot control the plain words of the statute, [(1923) 1 Ch. 143], but they may explain ambiguous words, (1884) 9 App. Cas. 365. But "while the court is entitled to look at the headings in an act 6 of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words in the section, where there cannot be any doubt as to their ordinary meaning, R. v. Surrey (North-Eastern Area) Assessment Committee (1948) 1 K.B. 29, per Lord Goddard C.J. at pp. 32, 33." 13. 32, 33." 13. So also Apex Court in the case of Frick India Ltd. v. Union of India, reported in (1990) 1 SCC 400 dealing with the implication of headnote of a Section have held as follows:- "It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of words in the provision. Only, in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision." 14. In view of the aforesaid settled position of law with regard to the relevance of the headnote of the Section in the interpretation of the statute and the fact that the Section 37 in its body never speaks that all the offences under the N.D.P.S. Act are non-bailable in nature, even if the head note speaks of the same, the learned 1st Addl. Sessions Judge-cum-Special Judge, Rourkela could not have held the offence alleged to be non-bailable. Since the offence is bailable in nature, this Court is of the view that the petitioner in the aforesaid case deserves to be released on bail provided he is ready to file the bail bond as ordered. 15. Therefore, this bail application stands disposed of being allowed with a direction to the learned 1st Addl. Sessions Judge-cum-Special Judge, Rourkela to immediately release the petitioner on bail, provided he furnishes the bail bond as directed by the learned Special Judge. However this Court hope and trust that the learned 1st Addl. Sessions Judge-cum-Special Judge, Rourkela while fixing the terms of the bail bond must remain alive to the social status of the petitioner. Urgent certified copy of this order be granted on proper application.