IMPORTANT POINTS
The right to claim bail under Section 436(1) of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences, there is no question of discretion in granting bail. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right. So long as the accused is prepared to give bail, the Court is bound to grant bail to a person accused of a bailable offence -Bail can be refused to a person accused of a bailable offence only under the circumstances mentioned in Section 436(2) of the Code.

ORDER :

The petitioners are the first and the third accused in the case registered as Crime No.683/2019 of the Chokli police station.

2. The offences alleged against the petitioners are under Sections 22(a) and 20(b)(ii)A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and Section 4(1) read with 7 of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Bill, 2019 (hereinafter referred to as 'the Bill').

3. The prosecution case is that, on 27.11.2019, the petitioners and the second accused were found having in their possession 1.530 grams of ganja, 2.40 grams of charas, 40 milligrams of MDMA, two bottles of nicotine fluid and e-cigarettes while they were travelling in the car bearing Reg.No.KL 18/K- 3198.

4. As per Annexure-II order, the learned Magistrate granted bail to the petitioners on certain conditions. One of the conditions was that they shall surrender their passport in the court and if they have got no passport, they shall file an affidavit to that effect before the court.

5. The petitioners surrendered their passports before the court, pursuant to Annexure-II order. Subsequently, they made applications before the court below for releasing/returning the passports to them. As per Annexure-I order, the learned Magistrate dismissed the aforesaid applications.

6. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') challenging Annexure-I order passed by the learned Magistrate.

7. Heard learned counsel for the petitioners and the learned Public Prosecutor.

8. The offences alleged against the petitioners are under Sections 22(a) and 20(b)(ii)A of the Act and Section 4(1) read with Section 7 of the Bill.

9. The aforesaid Bill was introduced in the Lok Sabha only on 22.11.2019. Even before that, the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Ordinance, 2019 (hereinafter referred to as 'the Ordinance') was in force with effect from 18.09.2019. Therefore, the case against the petitioners should have been registered under Section 4(1) read with Section 7 of the Ordinance and not under the provisions of the Bill which was yet to be passed by the Parliament. However, the aforesaid issue is only academic because the aforesaid Bill was enacted as a law and the Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act was passed by the Parliament (Published in the Government of India gazette dated 05.12.2019). The provisions of the said Act have been given effect from the date 18.09.2019.

10. In Annexure-II order passed by the learned Magistrate, it is stated as follows:

“The alleged offences are non-bailable but fall within the description of small quantities. The substances seized from them are also of small quantities.”

11. It eludes comprehension on what basis the learned Magistrate found that the offences under the Act, which are alleged against the petitioners, are non-bailable.

12. The Act does not contain any provision which states whether the offences under it are bailable or non-bailable. Of course, Section 37 of the Act suggests that the offences punishable under Sections 19, 24 and 27A and all offences involving commercial quantity under the Act are non-bailable. The question whether other offences under the Act are bailable or not is to be decided on the basis of the provisions contained in the Code.

13. As per Section 2(a) of the Code, unless the context otherwise requires, "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence. Part II of the First Schedule of the Code contains the classification of offences against la