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High Court of Delhi
S. RAVINDRA BHAT & S.P. GARG
Minnie Khadim Ali Kuhn
Versus
State NCT Of Delhi & Others
WP (CRL). 338 OF 2012 & CRL.M.A. 2824 OF 2012
Decided on : 08-05-2012
Detention - Narcotic Drugs and Psychotropic Substances Act - Section 20, Section 21, Section 37 - The court discussed the provisions of Section 20 and Section 21 of the NDPS Act, and the interpretation of Section 37 regarding bail conditions. The court emphasized the distinction between bailable and non-bailable offences under the NDPS Act and the applicability of the Criminal Procedure Code in granting bail.
Fact of the Case:
The petitioner sought the release of her son, detained for alleged possession of charas, and challenged the refusal of bail. The son was eventually released on bail by the Magistrate. The petitioner argued that possession of a small quantity of charas under Sections 20 and 21 of the NDPS Act is a bailable offence and the suspect is entitled to be enlarged on bail.
Finding of the Court:
The court found that the petitioner's son was entitled to bail for the offence of possessing a small quantity of charas under Section 21 of the NDPS Act. The court directed the Police Commissioner to issue guidelines for the release of suspects in future cases where offences are bailable.
Issues: The issues involved the interpretation of bail provisions under the NDPS Act, specifically Section 37, and the applicability of the Criminal Procedure Code in granting bail for certain offences.
Ratio Decidendi: The court held that except for specific offences enumerated under Section 37 of the NDPS Act, the normal law, i.e., the Criminal Procedure Code, is applicable for bail. The court emphasized the distinction between bailable and non-bailable offences under the NDPS Act.
Final Decision: The writ petition was disposed of with the court directing the Police Commissioner to issue necessary guidelines for the release of suspects in future cases where offences are bailable.
Key Points: - The main legal point is the distinction between bailable and non-bailable offences under the NDPS Act and the applicability of the Criminal Procedure Code in granting bail (!) . - The petitioner sought the release of her son, detained for alleged possession of charas, and challenged the refusal of bail (!) . - The petitioner argued that possession of a small quantity of charas under Sections 20 and 21 of the NDPS Act is a bailable offence (!) . - The court found that the petitioner's son was entitled to bail for the offence of possessing a small quantity of charas under Section 21 of the NDPS Act (!) . - The court held that except for specific offences enumerated under Section 37 of the NDPS Act, the normal law, i.e., the Criminal Procedure Code, is applicable for bail (!) . - The court emphasized the distinction between bailable and non-bailable offences under the NDPS Act (!) . - The court directed the Police Commissioner to issue guidelines for the release of suspects in future cases where offences are bailable (!) . - The heading of Section 37 of the NDPS Act stating all offences are non-bailable does not bind the court; the enacted provision must be applied [11000340090013]. - The non-obstante clause in Section 37(1) overrides conflicting provisions, but its scope is determined by what it seeks to override and the legislative policy [11000340090014]. - The offence of possession of a small quantity of charas under Section 21 of the NDPS Act is bailable by virtue of Section 436 of the Cr.PC [11000340090017].
S.RAVINDRA BHAT, J.
1. The writ petitioner, in these proceedings under Article 226 of the Constitution, seeks a direction that her son’s detention by the respondents and refusal to grant bail, was unlawful. He seeks a direction to quash his detention, and further consequential proceedings.
2. The facts leading to the filing of the present writ are that on 01.03.2012 at around 12 PM a police official of P.S Maurice Nagar went to the office of the Principal, St. Stephen’s College (hereafter “the college”) with a bag that he claimed he had found in the Kamla Nehru Ridge. The Vice Principal of the college was asked about the contents of the bag and a statement was recorded, which said that the bag contained some black substance; by 8 PM other police officials had reached the college. It is alleged that the bag containing the black substance belonged to the petitioner’s son. It is alleged that the police officials repeatedly stated in the presence of the College Vice Principal, teachers, lawyers and other students that there was 100 gms of charas. The petitioner asserts that it was not known whether any testing of the substance was done. The police refused to take on record a bail application or a representation drafted by Ms Nitya Ramakrishnan, Advocate. A call was made by her, to the DCP North from her mobile number 9818099045 and the DCP maintained that no one arrested for an offence punishable under Narcotic Drugs and Psychotropic Substances Act (“NDPS”) could be released on bail.
3. It is alleged that an FIR was registered at PS Maurice Nagar at about 18:45 on 01.03.2012; however a copy of the FIR was not given to the Petitioner till after 09:00 AM. The petitioner filed the present writ for habeas corpus for production of her son as he was not released on bail despite having been arrested for a bailable offence. He was released on bail by the Metropolitan Magistrate on 02.03.2012. It was submitted, on behalf of the petitioner, that these proceedings should continue as they raise important issues. It was submitted that the release of the detenu by the Magistrate does not take away the illegality of the detention. It was submitted that this Court should declare that whenever possession of a small quantity of “charas” under Sections 20 and 21 of the NDPS Act is alleged, the offence is bailable, and the suspect is entitled to be enlarged on bail, by the police as in the case of any other petty offences.
4. It was argued on behalf of the petitioner that he was arrested for the offences punishable under Sections 20 and 21 of the NDPS Act. Each of those offences is punishable with imprisonment which may extend to six months, or with fine, or with both. The FIR revealed that there were two packets of charas of 60 gms and 40 gms i.e. 100 gms. The quantity (100 gms of Charas) is a small quantity in terms of Section 2 (xxiiia) of the NDPS Act and is therefore not governed by the provisions of Section 37 of the NDPS Act, which impose restrictions on the court’s power to grant bail, by imposing additional norms.
5. Counsel for the petitioner submitted that the stringent conditions for grant of bail prescribed in Section 37(1)(b) are applicable only to offences punishable under Sections 19, 24 and 27-A as well as offences involving “commercial” quantities. The conditions in Section 37 do not apply to any other offence. The Counsel urged that the Section 37 does not declare that all offences under the NDPS Act are non-bailable offences. Even though the title/heading of Section 37 is “Offences to be cognizable and non-bailable” the body of the section does not reflect such unqualified intention. Section 37(1)(a) states that, every offence punishable under the Act “shall be cognizable;” yet the provision nowhere (apart from the title/heading), declares all offences to be non-bailable. Counsel for the petitioner relied on the decision in Frick India Ltd. v. Union of India and Ors., (1990) 1 SCC 400, where the Supreme court observed
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