2001 Supreme(SC) 1241

2001(6) Supreme 844
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
M.B. Shah & R.P. Sethi, JJ.
State of Madhya Pradesh -Appellant
versus
Kajad -Respondent
Criminal Appeal No. 907 of 2001
(Arising out of SLP (Crl.) No. 2614 of 2001)
Decided on 6-9-2001
Counsel for the Parties :
For the Appellant : Uma Nath Singh and Ms. Bharti Tyagi, Advocates.
For the Respondent : C.L. Sahu and Ms. Hema Sahu, Advocates.

VERY IMPORTANT POINT
Liberal approach for granting bail for offences under NDPS Act is uncalled for in view of Section 37 of the Act. In any case second application for bail should not be entertained if there are no change in circumstances.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 18 r/w 50 and 37-Respondent apprehended with 7 kg. opium in his possession-Charged for offence under Section 18 NDPS-Applied for bail first rejected by High Court-In second application bail was granted-No change in circumstances pleaded-Whether liberal approach in grant of bail justified under NDPS Act, (No, in view of Section 37)-Result-Bail granted is cancelled-Case law discussed.

       Held : The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for. (Para 5)

       After discussing case law,

       Held : In the instant case, the learned Single Judge of the High Court has granted the bail on his own sense of observation regarding the course of conduct adopted by the accused at the time of his interception and arrest. Merely because the accused was found to be continuing to hold bag containing opium during the period, the raiding party searched him in accordance with the provisions of the Act, the learned Judge was not justified to conclude "it is by itself unnatural". How the learned Judge concluded that the conduct of the accused or raiding party were unnatural is not discernible from the impugned order. A person, apprehended by a raiding party, who is sought to be searched is supposed to hold the goods in his possession unless he opts to flee from the place of occurrence or advised to throw the container in which the offending substance is contained. Section 37 of the Act has been referred in the impugned order not for the purposes of showing of its compliance but to justify the passing of an apparently wrong order. If, besides referring to Section 37 of the Act, the learned Judge would have referred to its provisions, he would not have fallen a prey to the ulterior designs of the respondent-accused. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. Case No. 2052 of 2000 on 5.6.2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa & Anr., 2001(1) SCC 169 : 2000(7) Supreme 40 and various other judgments. We are satisfied that the impugned order having been passed in violation of the provisions of the Act by ignoring the mandatory requirements of Section 37 and the conditions governing the grant of bail under the Code of Criminal Procedure and is thus not sustainable. Accordingly, the appeal is allowed by setting aside the order impugned. The respondent-accused shall surrender and his bail bonds are cancelled. He shall be taken into custody during the trial of the offence with which he has been charged. (Paras 8, 9 and 10)