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2020 DIGILAW 40 (MAN)

Jangpao Haokip v. State of Manipur

2020-12-21

KH.NOBIN SINGH

body2020
JUDGMENT : Kh. Nobin Singh, J. 1. Heard Smt. H. Bisheshwari, learned Advocate appearing for the petitioner and Shri Y. Ashang, learned PP for the State respondents. 2. The validity and correctness of the order dated 31-08-2020 passed by the Special Judge (NDPS), Manipur in Cril. Misc. (B) Case No. 212 of 2020 is under challenge in this petition. 3.1. According to the petitioner, 01-03-2020 at about 8.50 pm, he was returning from Moreh toward his village by hiring a black Conda bike. On the way, he was stopped by some police Commandos and thereafter, they conducted checking on his person but nothing illegal substance was recovered except his Aadhaar Card bearing No. 4827066951. Thereafter, the police commandos took him to Moreh P.S. and handed over to the said police on the allegation that some illegal drugs were recovered from his possession. 3.2. On 02-03-2020, the petitioner was produced before the judicial Magistrate 1st Class, Moreh with a prayer for police custody and the Hon'ble Court was pleased to remand him into police custody till 06-03-2020. Thereafter, on 06-03-2020, he was again produced before the Hon'ble Court with a prayer for Judicial custody, to which the Hon'ble Court was pleased to remand him into Judicial custody. 3.3. On the statutory period of 180 days having lapsed, the petitioner approached the Special Court (ND&PS), Manipur seeking for grant of bail under Section 167 (2) of the Cr.P.C. and the Hon'ble Court was pleased to release him on bail subject to his furnishing PR Bond of Rs. 5,00,000/- with two sureties of like amount who shall be Gazetted officers. It has been further directed by the Court that the petitioner also shall deposit a sum of Rs. 2,00,000/- to the Court refundable after disposal of the trial. 4. Being aggrieved by the said order of the Special Judge, ND & PS, Manipur, the instant petition has been filed on the inter-alia grounds that the petitioner is a poor farmer and is living on daily wage basis; that the conditions imposed by the Special Court amounts to denial of bail itself; that the insistence of depositing Rs. 4. Being aggrieved by the said order of the Special Judge, ND & PS, Manipur, the instant petition has been filed on the inter-alia grounds that the petitioner is a poor farmer and is living on daily wage basis; that the conditions imposed by the Special Court amounts to denial of bail itself; that the insistence of depositing Rs. 2,00,000/- is not only harsh but oppressive; that Section 441 of the Cr.P.C. does not contemplate a power of demanding cash security by the Special Court (ND & PS), Manipur; that the release of the petitioner on bail under Section 167 (2) of Cr.P.C. is rendered a virtual denial and that the imposition of conditions which the petitioner being a poor farmer cannot fulfill, is violative of Article 21 of the Constitution of India. 5. Despite opportunities being given to the respondents, no counter has been filed on their behalf and therefore, the averments made in the petition shall be deemed to have been admitted by them in view of the law laid down by the Hon'ble Supreme Court in a catena of decisions. 6. During the course of the hearing, it has been vehemently submitted by Smt. H. Bisheshwari, the learned counsel appearing for the petitioner that the issue involved herein has already been decided by the Hon'ble Supreme Court on 15-10-2020 in Saravanan Vs. State represented by the Inspector of Police, Criminal Appeal No. 681-682 of 2020 and therefore, the instant petition is liable to be allowed by this Court. On the contrary, it has been submitted by Shri Y. Ashang, the learned PP that the said decision has not been rendered by the Hon'ble Supreme Court in an issue arising out of the provisions of the ND & PS Act, for which he has relied upon the decision rendered by the Hon'ble Supreme Court in Union of India Vs. Thamisharasi & ors, (1995) 4 SCC 190 . 7. On perusal of the said decision rendered by the Hon'ble Supreme Court in Saravanan (supra), the contention of the learned counsel appearing for the petitioner appears to be correct. The issue involved therein was whether while releasing the appellant accused therein on default bail/statutory bail under Section 167 (2) CR.P.C., any condition of deposit of amount as imposed by the High Court, could have been imposed? The answer of the Hon'ble Supreme Court was in the negative and held: 9. The issue involved therein was whether while releasing the appellant accused therein on default bail/statutory bail under Section 167 (2) CR.P.C., any condition of deposit of amount as imposed by the High Court, could have been imposed? The answer of the Hon'ble Supreme Court was in the negative and held: 9. Having heard the learned counsel for the respective parties and considering the scheme and the object and purpose of default bail/statutory bail, we are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs. 8,00,000/- while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such condition taking into a consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs. 7,00,000/-. However, as observed by this Court in catena of decisions and more particularly in the case of Rakesh Kumar Paul (supra), where the investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60th or 90th day, accused gets an "indefeasible right" to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed. No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2), Cr.P.C. As observed by this Court in the case of Rakesh Kumar Paul (supra) and in other decisions, the accused is entitled to default bail/statutory bail, subject to the eventuality occurring in Section 167, Cr.P.C., namely, investigation is not completed within 60 days or 90 days as the case may be, and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. While allowing the appeal, the Hon'ble Supreme Court directed that the appellant shall co-operate with the investigating agency and shall report the concerned police station as and when called for investigation/interrogation and on non-cooperation, the consequences including cancellation of the shall follow. 8. It may be noted that the Hon'ble Supreme Court has decided only the issue relating to the release of an accused on default bail/statutory bail under Section 167 (2) Cr.P.C. irrespective of the nature of the offence alleged to have been committed by the accused. In other words, the provisions of Section 167 (2) Cr.P.C. have been construed to mean that no other condition of deposit of alleged amount can be imposed. The decision rendered by the Hon'ble Supreme Court in Thamisharasi (supra) does not help the learned PP appearing for the respondents at all, rather it has helped the case of the petitioner. In Thamisharasi also, it has been held by the Hon'ble Supreme Court that Section 167 (2) has been expressly applied by Section 36-A of the NP & PS Act, the scheme of which is that the provisions of the Cr.P.C. would apply except where there is any inconsistent provision in the ND & PS Act in relation to the arrest made under the Act. The relevant paragraphs of the said decision read as under: "8. The relevant paragraphs of the said decision read as under: "8. Section 36-A makes it clear that a person accused of or suspected of the commission of an offence under the NDPS Act is to be forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 CrPC; and the Special Court constituted under Section 36 of the Act exercises, in relation to the person so forwarded to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 CrPC in relation to an accused person forwarded to him under that Section. The clear reference to the power of the Magistrate under Section 167 CrPC, particularly sub-section (2) thereof, is an indication that no part of sub-section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the NDPS Act. This conclusion is reinforced by some other provisions of the NDPS Act. Section 36-C says that "save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court." This also indicates that the provisions in the Code of Criminal Procedure relating to bail and bonds are applicable to the proceedings before a Special Court under the NDPS Act "save as otherwise provided in this Act." Section 51 also says that the provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. Except for Section 37 of the N.D.P.S. Act, no other provision of the NDPS Act is relied on to contend that there is any inconsistent provisions in the NDPS Act to exclude the applicability merely of the proviso to sub-section (2) of Section 167 CrPC when sub-section (2) of Section 167 of the Code is made expressly applicable by Section 36-A of the NDPS Act. 9. The question, therefore, is: Whether Section 37 of the NDPS Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section (2) of Section 167 CrPC when sub-section (2) of Section 167 is expressly made applicable by the NDPS Act? 9. The question, therefore, is: Whether Section 37 of the NDPS Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-section (2) of Section 167 CrPC when sub-section (2) of Section 167 is expressly made applicable by the NDPS Act? The non-obstante clause at the beginning of sub-section (1) of Section 37 indicates that the provisions in clauses (a) and (b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every offence punishable under this Act to be cognizable. Clause (b) imposes limitations on granting of bail specified therein which are in addition to the limitations under the Code of Criminal Procedure on granting of bail as stated in sub-section (2) of Section 37. Clause (b) of sub-section (1) specifies the two limitations on granting of bail, namely, (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The learned Additional Solicitor General contends that these limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 indicate that the applicability of the proviso to subsection (2) of Section 167 CrPC is excluded in such cases. We are unable to accept this contention. 10. The limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 come in only when the question of granting bail arises on merits. By its very nature the provision is not attracted when the grant of bail is automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 CrPC. The only fact material to attract the proviso to sub-section (2) of Section 167 is the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case which till the filing of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Additional Solicitor General submitted that this belief can be formed during investigation by reference to the contents of the case diary even before the charge-sheet has been filed. This is fallacious. Till the complaint is filed the accused is supplied no material from which he can discharge the burden placed on him by Section 37(l)(b) of the NDPS Act. In our opinion, such a construction of clause (b) of sub-section (1) of Section 37 is not permissible. 11. Sub-section (3) of Section 36-A provides that the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure shall not be affected by anything contained in Section 36-A of the NDPS Act. Sub-section (2) of Section 167 CrPC has been expressly applied by Section 36-A of the Act and the scheme of the Act is that the provisions of the Code would apply except where there is any inconsistent provision in this Act in relation to arrests made under this Act. It is this context in which Section 37(l)(b) has to be construed wherein are specified the limitations on granting of bail. We must, therefore, look to the corresponding provision in the Code of Criminal Procedure with which Section 37(1) (b) of the Act can be treated to be inconsistent. In the Code of Criminal Procedure, it is Section 437 and not Section 167 which is the corresponding provision for this purpose. The corresponding limitation on grant of bail in case of non-bailable offence under Section 437 is as follows: "(i) such person shall not be so re-leased if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;" In other words, under Section 437 of the Code the person is not to be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence......." while according to Section 37 of the NDPS Act, the accused 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 offence.......". The requirement of reasonable grounds for belief in the guilt of the accused to refuse bail is more stringent and, therefore, more beneficial to the accused than the requirement of reasonable grounds for the belief that he is not guilty of the offence under Section 37 of the NDPS Act. Under Section 437 CrPC, the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is guilty while under Section 37 of the Act the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution showing the existence of reasonable grounds to believe that the accused is guilty while under the NDPS Act it is the accused who has to show that there are reasonable grounds for believing that he is not guilty. 9. In view of the above, this Court is of the view that the issue involved herein is covered by the decisions rendered by the Hon'ble Supreme Court in the above mentioned cases and that it can be safely held that the provisions of Section 167 (2) would apply to the accused arrested under the provisions of the ND & PS Act. The instant Cril. Petition stands allowed and consequently, the impugned order dated 31-08-2020 passed by the Special Judge, ND & PS, Manipur is partly quashed and set aside except the portion to the extent that petitioner is granted bail, with the following directions; (a) The petitioner shall be released on default bail provided he is ready to furnish PR bond to the satisfaction of the Special Judge, ND & PS, Manipur; (b) The petitioner shall co-operate with the investigating agency and shall report the concerned police station as and when called for investigation/interrogation; (c) On non-cooperation, the consequences including cancellation of the bail shall follow, for which it is open to the police to move appropriate application before the Special Court, ND & PS, Manipur; (d) The petitioner shall not leave the State of Manipur without the leave of this Court.