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High Court Of Calcutta
DEBIPRASAD SENGUPTA, MALAY KUMAR BASU
SAILESH R.SHAH - Appellant
Versus
INTELLIGENCE OFFICER, NCB, Eastern REGIONAL UNIT - Respondent
C. R. M. 3586 Of 2002
Decided On : 03/15/2002
NDPS ACT - SECTION 37 - BAIL - APPLICABILITY - CONTROLLED SUBSTANCE - COMMERCIAL QUANTITY - SECTION 167(2) CR.P.C. - STATUTORY BAIL - RIGHT TO BAIL - OBLIGATION OF COURT TO INFORM ACCUSED - HUSSANARA K HATOON V. STATE OF BIHAR - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioner, Sailesh R. Shah, was arrested on 20.6.2000 along with two other accused persons, Pravin Mehta and Vinod Jain, in connection with the seizure of 158.1 kg of Ephedrine Hydrochloride, a controlled substance. The petitioner filed a bail application before the Special Judge (NDPS Act), who rejected it. The petitioner then filed a bail application before the High Court, which allowed the bail application on the ground that the case of the petitioner was similar to that of Vinod Jain, who was granted bail by the Special Judge under section 167(2) Cr.P.C. The Supreme Court set aside the High Court's order and remitted the matter back to the High Court for fresh disposal of the bail petition in accordance with section 37 of the NDPS Act.
Finding of the Court:
The High Court held that the rigors of section 37 of the NDPS Act were not applicable in the present case as the seized article, Ephedrine, was not a Narcotic Drug or a Psychotropic Substance and was not included in the schedule specifying 'small quantity' and 'commercial quantity'. The High Court further held that the petitioner was entitled to statutory bail under section 167(2) Cr.P.C. as the learned Special Judge had failed to consider that the petitioner was equally entitled to the same benefit of the provision of section 167(2) Cr.P.C. as it was in the case of Vinod Jain.
Issues: 1. Whether the rigors of section 37 of the NDPS Act were applicable in the present case. 2. Whether the petitioner was entitled to statutory bail under section 167(2) Cr.P.C.
Ratio Decidendi: 1. The rigors of section 37 of the NDPS Act are only applicable to offences under section 19, section 24 or section 27a and also to offences involving 'commercial quantity'. 'Commercial quantity' refers to only Narcotic Drugs and Psychotropic substances. The seized commodity (Ephedrine) was a 'controlled Substance' and was neither a Narcotic Drug nor a Psychotropic Substance. Therefore, the provision of section 37 of the Act was not applicable in the present case. 2. The petitioner was entitled to statutory bail under section 167(2) Cr.P.C. as the learned Special Judge had failed to consider that the petitioner was equally entitled to the same benefit of the provision of section 167(2) Cr.P.C. as it was in the case of Vinod Jain.
Final Decision: The High Court allowed the petitioner's bail application and directed the petitioner to surrender before the learned Special Judge (NDPS) Act, VIth Bench, City Sessions Court within a period of 7 days. After such surrender, the petitioner was to be taken into custody and, if any, prayer for bail was thereafter made on his behalf, the learned Judge was to grant him bail in view of the provision of section 167 (2) Cr.P.C.
( 1 ) THIS is an application for bail in connection with NDPS Case No. 36/2000 arising out of Crime No. 6/ncb/cal 2000 under section 9a/25a/29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as NDPS Act ).
( 2 ) THE aforesaid case originated from the seizure of 158. 1kg. of white crystalline substance believed to be Ephedrine Hydrochloride recovered from inside room No. 5 of 109 Old China Bazar Street, Calcutta-1, which belonged to one Sirish Doshi and one Pravin Chandra Mehta @ Pravin Bhai Mehta. On the same date, i. e. , on 20. 6. 2000 some officers of the Narcotic Control Bureau searched the office-cum-godown of the present petitioner at 59a Rash Behari Basu Road, Calcutta-1 and seized some purchase and sale vouchers relating to Ephedrine Hydrochloride.
( 3 ) THE present petitioner, namely Sailesh R. Shah was arrested on 20. 6. 2000 along with two other accused persons namely Pravin Mehta and Vinod Jain. All the three accused persons were produced before the learned Special Judge (NDPS Act), VIth Bench, City Sessions Court, Calcutta and they were remanded to custody.
( 4 ) ALL the aforesaid three accused persons filed applications for bail before the learned Special Judge (NDPS Act) on 21. 8. 2000. The learned Judge by his order dated 30. 8. 2000 allowed the prayer for bail of Vinod Kumar Jain in view of the provision of 167 (2) Cr. PC since investigation of the case could not be completed within the statutory period of 60 days. But the learned Judge by the same order rejected the prayer for bail of Pravin Kumar Mehta and the present petitioner.
( 5 ) THEREAFTER challenging the aforesaid order rejecting the prayer for bail two separate applications for bail were preferred before this Court by the said Pravin Mehta and the present petitioner. The said two applications for bail were allowed by this Court by two different orders passed on different dates on the ground that the cases of Pravin Mehta and Sailesh R. Shah are similar to that of Vinod Kumar Jain, who was granted bail by the learned Special Judge under the provision of section 167 (2) Cr. PC as the chargesheet/complaint could not be submitted within the statutory period.
( 6 ) CHALLENGING the aforesaid two orders passed by this Court SLP was preferred the Hon'ble Supreme Court being SDP (Crl) No. 2624-2625/2001. From the order of the Hon'ble Supreme Court dated 7. 12. 2001 it appears that at the time of hearing it was submitted by the learned counsel appearing for the Union of India that he had instruction not to press the special leave petition filed against Pravin Chandra Mehta as his case is similar to that of Vinod Kumar Jain, who was granted bail by the Special Judge under section 167 (2) Cr. PC and on such submission the SLP against Pravin Mehta was dismissed. Then on the prayer of the learned advocate the SLP against the present petitioner was directed to be listed on 10. 12. 2001.
( 7 ) THEREAFTER by an order dated 11. 1. 2002 the Hon'ble Supreme Court set aside the order passed by this Court and remitted the matter to this Court for disposing of the bail petition of the present petitioner afresh in accordance with law, keeping in mind the provision of section 37 of the NDPS Act.
( 8 ) MR. Basu, learned advocate appearing for the petitioner draws our attention to the amended provisions of Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) which came into force on 9. 5. 2001. Mr. Bose draws our attention to the provision of section 41 of the Amended Act of 2001, which runs as follows:-41. Application of this Act to pending cases. (1) Notwithstanding anything contained in sub-section (2) of section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal A
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