1998 Supreme(Bom) 136

IN THE HIGH COURT OF BOMBAY
S.S. Nijjar, J.
Mr. M.D. Kale, Intelligence Officer, N.C.B. Bombay..... Petitioner.
Versus
Mr. Mohd. Afzal Mohd. Yarkhan another.... Respondents.
Criminal Revision Application No. 238 of 1997, decided on 3-4-1998.
Advocates appeared :
R.M. Agrawal with I.P. Bagaria and D.T. Palekar, for the petitioners.
S.R. Chitnis with U.N. Tripathi, for respondent No. 1.
I.S. Thakur, A.P.P., for the State.

Headnote:Article 227-See Narcotic Drugs and Psychotropic Substance Act, 1985, Sections 37, 37(1)(b) and 42.

       Section 397(2), 439(2) and 482 -See Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 37, 37(1)(b) and 42.

       Sections 37, 37(1)(b) and 42 - Criminal Procedure Code, 1973, Sections 397(2), 439(2) and 482Constitution of India, Article 227 - Offence under NDPS Act-Bail granted on personal bond-Challenged on ground of seriousness of case-High Court having powers to interfere with grant of bail under Sections 439(2) and 482, Cr PC and Article 227 of Constitution-Accused made confessional statement under Section 167 of Act-Nan-compliance of provisions of Section 42 of Act also contended-At stage of grant of bail questions whether confessional statement voluntary or not and whether provisions of Section 42 complied with Or not, cannot be gone through - Held, thus grant of bail without recording cogent reasons as required under Section 37(1)(b) not proper.-It can hardly be said that the present application is not made under Section 439(2) of the Criminal Procedure Code. Once the application has been filed under Section 439(2) of the Cr PC mere mention of Section 482 of Cr PC and Article 227 of the Constitution of India would not change the nature of the application. The question raised by Mr. C may perhaps have been relevant had the application been made as a Criminal Writ Petition under Section 482 of the Cr PC or as a petition under Article 227 of the Constitution of India alone. Section 37(1)(b) of the NDPS Act clearly provides that no person accused of an offence punishable for a term of imprisonment of five years or more lmder this Act shall be released on bail or on his own bond unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The aforesaid section clearly provides that no person accused of an offence punishable for a term vi imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The aforesaid section clearly provides that when the Public Prosecutor opposes the application for bail then the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence. These provisions have an overriding effect on the provisions of the provisions of the Code of Criminal Procedure, 1973, Section 37 starts with a non obstante clause in the terms that Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). This section imposes stringent restriction on the grant of bail and the conditions mentioned therein must be satisfied. Bail is not the normal rule for such offences. In order to satisfy the Court that there are reasonable grounds for believing that the accused is not guilty of an offence under the NDPS Act it is the accused who would have to furnish the material for the said satisfaction. In the present case the learned Special Judge has held that Section 41 of the NPDS Act has been complied with. Bail has, however, been granted on the ground that Section 42(2) of the NDPS Act has not been complied with. The learned Special Judge has held that there is no strict compliance of the said provisions which can be looked into at this stage. This view of is not contract. The gist of information as required under the Act was reduced to writing on 12.1.1996. It has been signed by the officers as well as the informer. Below the said gist of information it is categorically mentioned that a copy has been sent to ADNCBBZU, Bombay on 12.1.1996 as required under Section 42(2) of the NDPS Act, 1985. This again is signed by the officer. Although the non-compliance of the provisions of the Act can be looked into at the stage of bail the Court cannot be oblivious to other incriminating evidence. In the present case the accused has made a confessional statement in which he has very eloquently set out as to how he came into possession of the drugs as also the equipment for manufacture of methaqualone powder. Certain quantities of methaqualone powder which had been manufactured was also recovered. Merely because the statement has been subsequently retracted does not that it can be discarded at the stage of bail itself. A retracted statement does not lose its evidentiary value. In any event at the stage of consideration of the application for bail, the Court would not be justified in holding a mini trial to decide as to whether or not the retracted statement was voluntary. The learned Special Judge has aced in excess of jurisdiction whilst granting bail to the respondent. The evidence collected by the prosecution viz. the recovery of the contraband and the apparatus/implements for manufacture of methaqualone powder ego heating manties, motor with strike device, motor with reduction gear, electric dryer, weighing scale, stoppers, cylindrical bow Is, glass tube connections etc. cash in the sum of Rs. 15,000/- could not be discarded at the stage when an application for bail is being considered.

       Court is also of the considered opinion that the learned Special Judge has erred in granting bail to the applicant without recording any cogent reasons in terms of Section 37(1)(b) of the NDPS Act. Section 35 of the Act raises a presumption of mens rea against the accused. This section provides that it shall be a defence for the accused to prove the fact that he had no mental state with respect to the act charged as an offence in that prosecution. Sub-section (2) of Section 35 of the NDPS Act provides that such defence would have to be proved beyond a reasonable doubt and not merely by a preponderance of probability. This is a departure from the normal rule, consciously made by the Legislature. Thus while coming to the conclusion under Section 37(1)(b) that there are reasonable grounds for believing that the accused is not guilty of the offences charged provisions of Section 35 have to be kept in view.

       Section 37(1)-Bail-Grant of.-In absence of any grounds before the Court for believing that accused is guilty of offence under the Act, the bail can be granted.