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2009(1) Supreme 524
SUPREME COURT OF INDIA
D.K. Jain and R.M. Lodha, JJ.
Union of India — Appellant
versus
Rattan Mallik @ Habul — Respondent
Criminal Appeal No. 137 of 2009
(Arising out of S.L.P. (Criminal) No.1057 of 2008)
Decided on : 23-01-2009
(b) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Grant of bail is subject to section 439, Cr. P.C. as also conditions of section 37 – These conditions are cumulative and not alternative – Recording of satisfaction on both aspects is sine qua non for granting of bail under the Act. (Para 13)
(2007) 7 SCC 798 – Relied upon.
(2000) 8 SCC 437 – Referred.
(c) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – It is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to guilt of the accused – What is to be seen is whether there is reasonable ground for believing that the accused is not guilty and further that he is not likely to commit an offence under the said Act while on bail. (Para 14)
(d) Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37 – Non-recovery, period in custody and likely delay in hearing of appeal may be relevant for grant of bail in matters arising out of conviction under IPC etc. – These are, however, not sufficient to satisfy the mandatory requirements as stipulated in sub-clause (b) of sub-section (1) of Section 37. (Para 15)
Facts of the case :
1. The case of the prosecution against the respondent was that he was involved in financing and trading in 14.900 kilograms of heroin, recovered from a specially made cavity above the cabin of a truck.
2. The Trial Court came to the conclusion that the prosecution had successfully proved the charges against the respondent and three others.
3. The High Court, by the impugned order, has allowed the bail application.
Finding of the Court :
The impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, cannot be sustained.
Result : Matter remitted back.
JUDGMENT
D.K. Jain, J. —
1. Delay condoned.
2. Leave granted.
3. Challenge in this appeal, by the Union of India, is to the order dated 13th November, 2006, passed by the High Court of Judicature at Allahabad suspending the sentence awarded by the trial Court to the respondent for having committed offences under Sections 8/27A and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) and granting him bail.
4. Since in this appeal we propose to deal with the short question, viz. whether the High Court, while accepting the prayer for grant of bail, had kept in view the parameters of Section 37 of the NDPS Act, we deem it unnecessary to advert to the facts of the case against the respondent in greater detail. It would suffice to note that the case of the prosecution against the respondent was that he was involved in financing and trading in 14.900 kilograms of heroin, recovered from a specially made cavity above the cabin of a truck. Upon consideration of the evidence adduced, the Trial Court came to the conclusion that the prosecution had successfully proved the charges against the respondent and three others. On conviction, the Trial Court sentenced the respondent to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac under Section 27A of the NDPS Act and undergo rigorous imprisonment for ten years and a fine of Rs.1 lac under Section 29 of the NDPS Act, with default stipulation.
5. Being aggrieved, the respondent preferred an appeal to the High Court along with an application for suspension of sentence and grant of bail till his appeal was finally decided. The High Court, by the impugned order, has allowed the bail application and has ordered that the respondent shall be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the concerned Court.
6. The considerations which weighed with the High Court for suspension of sentence and grant of bail are brief and for the sake of ready reference are extracted below:
“The appellant has been convicted under Sections 8/27-A and 8/29 N.D.P.S. Act for ten years R.I and also fine. Nothing has been found from his possession. Besides the appellant is in jail since 5.9.2003. Three years have already lapsed. There is no chance of the appeal being heard within a period of seven years.”
7. Aggrieved thereby, the Union of India has preferred this appeal.
8. Mr. A. Sharan, learned Additional Solicitor General of India, strenuously urged that the High Court has committed a grave error of law in granting bail to the respondent, ignoring the mandatory provisions of Section 37 of the NDPS Act. The learned counsel contended that the High Court lost sight of the restrictions and limitations imposed by Section 37 of the NDPS Act. According to the learned counsel, the grant of bail to the respondent, without recording any finding on the conditions as stipulated in Section 37(1)(b)(ii) of the NDPS Act, the order suspending the sentence is ex facie illegal and therefore deserves to be set aside, with a direction to the respondent to surrender to custody forthwith. In support of the proposition that suspension of sentence by the appellate Court has to be within the parameters of law, prescribed by the Legislature, the learned senior counsel placed reliance on a three judge Bench decision of this Court in Dadu alias Tulsidas Vs. State of Maharashtra1.
9. Learned counsel appearing on behalf of the respondent, on the other hand, supported the impugned order and submitted that if the impugned order is read as a whole, it can be inferred therefrom that the learned Judge was conscious of the provisions of Section 37 of the NDPS Act. It is, thus, urged that the order granting bail to the respondent being discretionary, this Court should be loath to interfere with it in exercise of its jurisdiction under Article 136 of the Constitution.
10. Having carefully gone through the impugned orde
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