Mrs. Kheirun Bibi, the petitioner, has made this petition for grant of bail to her husband, Md. Satter Shah Khuraton, who as an accussed in Imphal PS Case No. FIR 273 (6)/93 under section 21 NDPS Act, is in jail's hazot since his arrest on 6.6.93.

2. Prosecution case against him is that the police recovered and seized 35 grams of heroin powder from the quarter of the Chowkidar of Minor Irrigation Office, Imphal, which was being occupied by the accused though was not Chowkidar. He denies the case against him.

3. Mr. Dhananjoy Singh, learned counsel for the accused stated that the accused is a poor local Manipuri Muslim aged 50 years and he has been living with his family only at Imphal for years and submitted that if he is released on bail there is no possibility that at this age he would abscond or would be able to hinder police investigation. He submitted that since the accused has been kept in hazot from 6,6.93 this is now a fit case for grant of bail. Mr. Jagat Chandra, learned PP produced a case diary and stated that the IO has found sufficient materials »j prosecute the accused and by now he has almost completed the investigation. As the IO found materials he has objected to the grant of bail.

4. The accused is a poor and ageing local man and there is no denial that if bail is granted there is no likelihood that he would abscond or would be able to obstruct the investigation in any manner and, on PP's own showing the IO has already got sufficient materials to submit the charge sheet and the investigation hasjilso reached almost the stage of closing. This being the position, lam now inclined to grant the bail.

5. Mr. Jagat Chandra then said that in view of the bar in section 37 bail cannot be granted becau e materials have been found against the accused. Section 37 says as follows :

"37. Offence to be cognizable and non-bailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable ;

(b) no person accused of an offence punishable for a term of impri-sonmment of five years or more under this Act shall be nleased on bail or on his own bond unless -

(1) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, 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.

(2) The limitation on granting bail specified in clause (b) of sub­section (I) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail."

6. The objection is based on clause (b) (ii). I have given much thought to this. In my view the words ''he is not guilty of such offence" should have been omitted. A bail is to be granted to an accused who would have to stand the trial. If the IO or the Court before which the application for bail is made believes that the accused is not guilty of such offence he would not have to stand the trial. The main purpose of detention in hazot is to prevent the accused from contacting witnesses and making seizures of relevant articles during investigation and thereby causing obstruction or hindrance to the process of investigation. As the stage for such fear is over, I see no reason why bail should not be granted. In fact, in practice bails are granted by Court even to accused who is charged under section 302 IPC for murder. Nothing has been shown to me that the accused in this case would commit another offence after going on bail. I am, therefore, clearly of the view that section 37 should not be interpreted as an absolute and total bar to the grant of bail and therefore a. Court can grant bail depending on the facts and circumstances of the case to an accused against whom materials have been obtained to put him up for trial.

In the view I have take

Click Here to Read the rest of this document