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SUPREME COURT OF INDIA
BEFORE J.S. VERMA AND SUJATA V. MANOHAR, JJ.
Criminal Appeals Nos. 611-12 of 1995
UNION OF INDIA
Versus
THAMISHARASI AND OTHERS
With
Criminal Appeals Nos. 298-299 of 1995
INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU
Versus
ARIF U. PATEL
Criminal Appeals Nos. 611-12 with Nos. 298-299 of 1995{From the Judgment and Order dated 14-12-1994 of the Madras High Court in H.C.Ps. Nos. 1675 and 1692 of 1994}, decided on May 1, 1995
Advocates appeared:
K.T.S. Tulsi, Additional Solicitor General (V.J. Francis and V.K. Verma, Advocates, with him) for the Appellant;
Ram Jethmalani, Senior Advocate (B. Kumar and K.K. Mani, Advocates, with him) for the Respondents.
Narcotic Drugs and Psychotropic Substances Act, 1985 - Code of Criminal Procedure, 1973 - Section 167, 309 - Claimed to be released on bail - Arrested for Commission - Narcotics Control Bureau got a tip-off that a consignment of flasks exported from Madras to Israel contained hashish concealed therein; and pursuant to this tip-off consignment was seized at Israel - On basis of information, premises of accused were searched at Madras and their statements recorded by the authorities concerned. These accused were arrested and produced before the Magistrate who granted remand from time to time. We need not mention the facts relating to orders of preventive detention of accused under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 since that is the subject-matter of a different proceeding wherein order of preventive detention was challenged – Held, If it considers necessary so to do, to direct that such person be arrested and committed to custody - It is also clear that after taking of cognizance power of remand is to be exercised under Section 309 of New Code - But if it is not possible to complete the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a paradise for the criminals, but surely it would not be so, as sometimes it is supposed to be, because of the courts - It would be so under command of Legislature - power of the High Court to grant bail under Section 439 of Code of Criminal Procedure is subject to limitations contained in amended Section 37 of the NDPS Act since those additional limitations are applicable to High Court also in the matter of granting bail. That is different question. That decision does not, therefore, answer the question which arises for consideration in the present case. No other decision of this Court has been relied on by either side at hearing before us to support a different view - Appeals dismissed
Key Points:- The NDPS Act expressly applies Section 167(2) CrPC to proceedings involving offences under the Act, and Section 36-A and 36-C govern proceedings before Special Courts with adherence to CrPC where not inconsistent. (!) (!) (!) - The proviso to sub-section (2) of Section 167 CrPC (automatic bail after 60/90 days if complaint not filed) is not excluded by NDPS Act; absence of an express contrary provision means it remains applicable, and bail on expiry can be granted unless the NDPS Act imposes additional conditions. (!) (!) (!) - Section 37(1)(b) of the NDPS Act imposes additional bail limitations beyond CrPC, requiring the court to be satisfied of reasonable grounds for believing not guilty, and the opportunity for the Public Prosecutor to oppose; these do not automatically negate the applicability of the Section 167(2) proviso but operate as supplementary to CrPC. (!) (!) (!) (!) (!) - The burden on the accused under Section 37 NDPS is to show reasonable grounds for belief of not guilty, distinguishing from the CrPC standard where the prosecution must show reasonable grounds for guilt; this affects bail considerations but does not substitute for the 167(2) custody limit. (!) (!) - The Act’s scheme does not include an explicit provision excluding the 167(2) proviso, and the absence of such an inconsistency supports applying CrPC provisions alongside NDPS constraints. (!) (!) - The decision emphasizes that the High Court’s powers under Section 439 CrPC are subject to the NDPS Act’s added bail limitations, and that Special Courts apply CrPC provisions save as inconsistent with the NDPS Act. (!) (!) (!)
JUDGMENT
J.S. VERMA, J.-Leave granted in special leave petitions.
2. The common question of law for decision is : Whether the proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 can be invoked by an accused arrested for commission of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"), to claim release on bail on the expiry of the total period specified therein if the complaint is not filed within that period? The Madras High Court has answered this question in the affirmative and directed the release on bail of. the respondents who were arrested for the commission of offences under the NDPS Act in default of filing the complaint within that period. Hence, these appeals by special leave.
3. The material facts are only a few. Admittedly, the Narcotics Control Bureau got a tip-off that a consignment of flasks exported from Madras to Israel contained hashish concealed therein; and pursuant to this tip-off the consignment was seized at Israel on 8-6-1994. On the basis of information, the premises of the accused Armukham, Nagraj and Arif U. Patel were searched at Madras and their statements recorded by the authorities concerned. These accused were arrested on 27-6-1994 and produced before the Magistrate who granted remand from time to time. We need not mention the facts relating to the orders of preventive detention of the accused under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 since that is the subject-matter of a different proceeding wherein the order of preventive detention was challenged. Admittedly, the complaint against the accused was not filed within the maximum period of 90 days of the arrest specified in the proviso to subsection (2) of Section 167 CrPC as the total period for which the accused can be remanded to custody during investigation. Accordingly, the accused claimed to be released on bail as of right on expiry of the specified period of 90 days and they have been directed to be released on bail on that ground alone. The High Court has rejected the prayer for cancellation of the bail by the impugned order. Hence, these appeals involve for decision the aforesaid common question of law.
4. It may be mentioned that in the meantime, after the aforesaid prescribed period, the complaint has been filed but this subsequent fact is not material for decision of the above question of law. It is common ground that the legality of the impugned order granting bail is to be decided with reference to its date prior to the filing of the complaint. The power to detain the accused on the basis of the material now available on merits or the liability of the accused for preventive detention is a separate question which does not arise for consideration herein, and would remain unaffected by the view taken in these appeals on the sole question for decision.
5. The submission of the learned Additional Solicitor General is that by virtue of the special provisions in the NDPS Act and particularly Sections 36 and 37 thereof, the application of the proviso to sub-section (2) of Section 167 CrPC is excluded in the case of a person accused of any offence punishable under the NDPS Act. On the other hand, Shri Ram Jethmalani, learned counsel for the respondents contends that the scheme of the NDPS Act supports the applicability of the proviso to sub-section (2) of Section 167 CrPC instead of indicating its exclusion in such cases.
6. The relevant provisions in the Code of Criminal Procedure, 1973 are as under :
"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 e
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