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1994 Supreme(Mad) 229
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE N. ARUMUGHAM
M. Prabhulal - Appellant
Versus
Assistant Director, Revenue Intelligence, Tiruchy - Respondents
Crl.O.P. No. 14061 of 1993
Decided On : 02 March 1994
The non-compliance of Section 57 of the NDPS Act is a technicality and does not entitle the accused to bail if there is overwhelming evidence against him.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 57 - NON-COMPLIANCE - EFFECT - SECTION 37(B) - POWER OF HIGH COURT TO GRANT BAIL - LIMITATION - TECHNICALITY - PREJUDICE.
Fact of the Case:
The petitioner was arrested for alleged offences under Sections 8(c), 21, 23, and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act). He sought bail on the ground that the Investigating Agency had not complied with Section 57 of the NDPS Act, which mandates sending a special report to the immediate superior officer upon arrest.
Finding of the Court:
The court held that the non-compliance of Section 57 of the NDPS Act was a technicality and did not cause any prejudice to the petitioner. It also held that the court had the power to grant bail under Section 37(b) of the NDPS Act, subject to the limitation that the accused must not have committed the offense and was not likely to commit any offense.
Issues: 1. Whether the non-compliance of Section 57 of the NDPS Act was a mandatory violation that entitled the petitioner to bail. 2. Whether the court had the power to grant bail under Section 37(b) of the NDPS Act.
Ratio Decidendi: 1. The court held that the non-compliance of Section 57 of the NDPS Act was a technicality and did not cause any prejudice to the petitioner. It reasoned that the purpose of Section 57 was to provide a check on the Investigating Agency and prevent it from foisting false cases. However, in the present case, there was overwhelming evidence against the petitioner, including his voluntary confession statement and the seizure of a large quantity of contraband. 2. The court held that it had the power to grant bail under Section 37(b) of the NDPS Act, subject to the limitation that the accused must not have committed the offense and was not likely to commit any offense. It relied on the Supreme Court decision in Narcotics Control Bureau v. Kishan Lal & Others, which held that the High Court has the power to grant bail under Section 37(b) of the NDPS Act, but only if it is satisfied that the accused has not committed the offense and is not likely to commit any offense.
Final Decision: The court dismissed the petition for bail.
Heard. The petitioner herein was arrested by the respondent, an Investigating Agency, authorised by the Narcotic Drugs & Psychotropic Substances Act, 1985 hereinafter referred to as 'the N.D.P.S. Act', on 16-5-1993 at his residence at Trichirapalli town, for the alleged offences under Sections 8(c), 21, 23 and 29 of the N.D.P.S. Act, followed by the interrogation, recording the statements, he was lodged to judicial custody on 18-5-1993 and since then onwards he was confined to be behind the bars as a remanded prisoner.
2. The facts leading to the arrest of the petitioner, according to the respondent, is that, he is the brain behind the whole episode of transporting 361.6 Kgs. of Opium valued at Rs. 36, 16, 000 and 66.1 Kgs. of Heroin valued at more than Rs. 132 crores through a lorry to Sri Lanka from India, and that it was intercepted on 15-5-1993 at Thalapallam Village, near Salem and found detected, and that pursuant to the same, several persons including the Driver, Cleaner and occupants of the said lorry as well as the occupants of an Ambassador Car following the said lorry, supposed to be the persons going as escorts, were also secured and interrogated. The investigation reveals, according to the respondent, that a criminal conspiracy was hatched out by the petitioner herein along with his own brother Shivanarain and his close associates Loganathan and other co-accused. For the limited purpose of this application. I do not propose the extract the various contents of the voluntary confession statements, recorded by the respondent. Enough for me at this stage, to say, that on perusal of the voluntary confession statements recorded from the petitioner as well as his own brother Shivanarain, Loganathan and two others, it is seen, that theprima faciepossibility of the petitioner involved in the offence in this case cannot be ruled out, for the reason that when the petitioners was lodged before the Judicial Magistrate, nothing has been recorded by him adverse to his conduct of giving confession. This position has been clearly identified as has been laid down by the Courts of law clearly. The said confessions are materials, deemed to be legal evidence available, totally adverse to the petitioner herein, as an information collected under Section 67 of the N.D.P.S. Act. Under the circumstances, it is thus seen that there are ample and adequate materials and legal evidence collected by the respondent and very much available totally against the petitioner herein regarding his direct involvement.
3. The only contention though strenuously urged by Mr. K. Sengottian, learned counsel appearing for the petitioner is that following the view held by this Court, that Section 57 of the N.D.P.S. Act has not since been complied with, which is mandatory in nature, the petitioner is entitled to be enlarged on bail, for the presumption necessarily arises that he has not committed the offence, or is not likely to commit the offence as laid down by the Supreme Court inNarcotics Control Bureauv.Kishan Lal & Others, 1991 Law Weekly (Crl.) 53. On an earlier occasion, an attempt was made in this regard on behalf of the same petitioner for bail. But, however, the said ground has not been taken and that even so, the said attempt has been negatived by this Court.
4. Mr. P. Rajamanickam, learned Standing Counsel for the respondent besides filing his counter-affidavit as well as additional counter-affidavit, raised two contentions while controverting the ground projected by Mr. Sengottian, learned counsel on behalf of the petitioner, which are the following :-
(1) irrespective of any laches or technical defects though committed by the Investigating Agency, the very object and purpose of making the provision of the N.D.P.S. Act so stringent by the Statute clearly demonstrates the fact that the non-compliance cannot have a riddle over the ratio decided by the Apex Court inNarcotics Control Bureauv.Kishan Lal & Others (1991 Law Weekly (Crl.) 53] and (
