IMPORTANT POINTS
1. An accused can file any number of bail applications however, it is for him to show the change of circumstances after dismissal of earlier such application.
2. Quashing of detention order can be considered to be a change of circumstance for considering second bail application under NDPS Act case.
3. Where the case under NDPS Act discloses non-compliance of mandatory provisions of Section 42(2), 52 and 57 of the Act, the accused would be entitled to bail.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 37 (1) (b) (ii) - Recovery of 2kg. Of heroin from possession of petitioner - Second bail application Maintainability - Accused is entitled to me any number of bail applications but it is for him to show the change of circumstances after dismissal of the bail application - Earlier bail application of petitioner was dismissed on 13-8-1998 - His Special Leave to appeal was dismissed on ground that he was detained under Section 3 (1) of NDPS Act - Detention order was quashed by Supreme Court - Petitioner got a ground to re-agitate his prayer for ball - Quashing of detention order could be considered to be a change of circumstance. (paras 12 Be 13)
       (ii) Ball - Petitioner's plea for taking into consideration statement of witnesses got recorded under Section 164, Cr. P.C. - Power of Magistrate under Section 164, Cr. P.C. to record statements of persons connected with any criminal case can not be curtailed - Such statements, however, which are Dot part of investigation cannot be permitted to be made use of - Such statements cannot be made use of in bail application. (Paras 21 Be 22)
       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985 Section 37 (1) (b) (ii) - To release an accused on bail there must be some reasonable ground for believing that he is not guilty of such offence and that he was not Uke1y to commit any offence while on bail - Recovery of 2kg. of heroin from possession of petitioner, a Superintendent of Central Excise - Ground of arrest was not informed to petitioner Mandatory provision of Sections 52 and 57 of the Act were also not complied with - It could be held that there were reasonable grounds for believing that he was not guilty of offences not acceptable material to show that in the event of his release on bail, he would involve in similar offence - Petitioner held entitled to bail. (paras 30 to 32, 34 Be 38)
       Result: Petition allowed.

JUDGMENT

S. Thangaraj, J. - The petitioner/accused No. 1 in C.C. No 521/98 on the file of the Special Judge for N.D.P.S. Act cases, Madurai has filed this petition for his release on bail.

2. The respondent has filed a complaint against the petitioner and another accused for offences under Section 6(c) punishable under Sections 21, 27 - A. 28 and 29 of the N.D.P.S. Act, 1985 and under Sections 193 and 120 - B, I.P.C. and the said complaint was taken on file by learned Special Judge for N.D.P.S. Act cases, Madurai in C.C. No. 521/98.

3. The petitioner herein and other accused are public servants employed under the Narcotic Control Bureau at Madurai and Tirunelveli respectively. The respondent received a specific information that the petitioner herein along with others was indulging in trafficking and that around 2 kgs. of heroin was in the possession of the petitioner at his room No. 116. Thiruchenduran Mansion, Vasantha Nagar, Madurai - 5. On receipt of the information, the Officers of Narcotic Control Bureau, South Zonal Unit, Chennai went to the said premises and seized 2 kgs. of heroin on being produced by the petitioner herein. After observing all necessary formalities the petitioner was arrested on 8-5-1998.

4. Earlier the petitioner has filed a bail application in Crl. O.P. No. 8785/98. His Wife Trot Gladys Lilly who is the second accused in the complaint, also filed a bail application in Crl. O.P. No. 9305/98. One Madhavan and another, Karunakaran were originally arrested in connection with this case also filed bail applications in Crl. O.P. Nos. 9973/98 and 10074/98 on the file of this Court. After due consideration, this Court dismissed all the applications by an order dated 13-8-1998. Aggrieved by that, the petitioner has filed Special Leave to Appeal (Crl.) No. 2800/98 before the Honourable Supreme Court of India and the same was dismissed on the ground that the petitioner was detained by an order dated 28-9-1998 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. Subsequently the petitioner moved before the Honourable Supreme Court of India in W.P. (Crl.) No. 194/98 and the order of detention was quashed by Their Lordships of the Supreme Court by their judgment dated 14-5-1999. Thereafter the petitioner has come forward with the present application for bail.

5. Learned Special Public Prosecutor for the respondent Department has filed a preliminary objection petition as to the maintainability of the present Crl. O.P. No. 13269/99. The main contention in the preliminary objection petition is that as already this Court has analysed the entire materials, both documentary and legal and thereafter, dismissed the bail application, the judgment passed by the Honourable Supreme Court of India in W.P. (Crl.) No. 194/98 cannot be taken as a change of circumstance in favour of the petitioner and therefore the present petition for bail will not lie.

6. Learned Counsel for the petitioner has argued that against the order passed by this Court Crl. O.P. No. 8785 /98 dated 13-8-1998, the petitioner has preferred a petition for Special Leave for Appeal (Crl.) No. 2800/98 and the same was dismissed on the ground that he was detained under Section 3 (1) of the N.D.P.S. Act and that since the said order was quashed, the petitioner can review his application for bail.

7. Learned Special Public Prosecutor for the respondent Department has contended that in such a situation, the application shall not lie before this Court and the petitioner can move the Honourable Supreme Court of India directly.

8. To negative the said contention of the Department, learned Counsel for the petitioner has relied on a decision of the Supreme Court in Babu Singh v. State of U.P.1, and at page 580, Their Lordships have held

"But an order refusing an application for bail does not necessarily preclude a

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