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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ARUMUGHAM
Assistant Director of Revenue Intelligence, Mad - Appellant
Versus
Abdul Rasheed - Respondents
CRL. O.P. No. 8973 of 1993
Decided On : 17 September 1993
CRIMINAL PROCEDURE CODE - SECTION 439 - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTIONS 37, 41, 42, 43, 50, 51, 55, 57, 66, 67 - BAIL - CANCELLATION - SEIZURE MAHAZAR - NON-PRODUCTION - EFFECT - INVESTIGATION - NON-COMPLIANCE WITH MANDATORY PROVISIONS - EFFECT - COURT'S POWER TO GRANT BAIL - LIMITATIONS - SECTION 37(B) - INTERPRETATION - JUDICIAL POLICY - DESPATCH OF SEIZURE MAHAZAR TO COURT - LEGAL DUTY - DELAY - CONSEQUENCES - STRICT COMPLIANCE WITH SECTION 37 - NECESSITY - EXCEPTIONS - NON-COMPLIANCE WITH MANDATORY PROVISIONS - VITIATION OF INVESTIGATION - GROUND FOR BAIL - CONFESSION STATEMENT - ADMISSIBILITY - SECTION 67 - COURT'S DISCRETION - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, Assistant Director, Directorate of Revenue Intelligence, filed a petition under Section 439(1) of the Code of Criminal Procedure, seeking cancellation of bail granted by the Principal Sessions Judge, Madras, to the respondent, Abdul Rasheed, in a case involving offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The respondent was arrested along with others for possession of one kilogram of Heroin. The petitioner contended that the bail was granted solely on the ground that the seizure mahazar was not produced before the court, despite the petitioner's compliance with the mandatory provisions of the NDPS Act, including the recording of confession statements from the accused under Section 67 of the Act. The respondent, on the other hand, argued that the non-production of the seizure mahazar and non-compliance with the mandatory provisions of the NDPS Act vitiated the investigation and justified the grant of bail.
Finding of the Court:
The court held that the non-production of the seizure mahazar alone did not vitiate the investigation or justify the grant of bail, as there was no specific provision in the NDPS Act requiring the immediate sending of the seizure mahazar to the court. However, the court emphasized the importance of despatching the seizure mahazar and other important documents to the court as expeditiously as possible as a matter of sound judicial policy to prevent embellishments or implication of false persons. The court further held that the rigour of Section 37 of the NDPS Act, which imposes a total embargo on bail for offences under the Act, can only be relaxed in cases where the mandatory provisions of the Act have been violated, vitiating the investigation. In the present case, the court found that the learned Sessions Judge had overlooked the object and purpose of the NDPS Act and erred in granting bail to the respondent without considering the limitations imposed by Section 37 of the Act.
Issues: 1. Whether the non-production of the seizure mahazar alone vitiates the investigation and justifies the grant of bail under Section 37 of the NDPS Act? 2. Whether the court has the power to grant bail for offences under the NDPS Act despite the total embargo imposed by Section 37 of the Act? 3. What are the limitations on the court's power to grant bail under Section 37 of the NDPS Act? 4. Whether the non-compliance with the mandatory provisions of the NDPS Act can be considered while exercising the power to grant bail under Section 439 of the Code of Criminal Procedure?
Ratio Decidendi: 1. The non-production of the seizure mahazar alone does not vitiate the investigation or justify the grant of bail under Section 37 of the NDPS Act, as there is no specific provision in the Act requiring the immediate sending of the seizure mahazar to the court. 2. The court has the power to grant bail for offences under the NDPS Act despite the total embargo imposed by Section 37 of the Act, but only in cases where the mandatory provisions of the Act have been violated, vitiating the investigation. 3. The limitations on the court's power to grant bail under Section 37 of the NDPS Act are that the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. 4. The non-compliance with the mandatory provisions of the NDPS Act can be considered while exercising the power to grant bail under Section 439 of the Code of Criminal Procedure, as it may vitiate the investigation and affect the accused's right to a fair trial.
Final Decision: The court allowed the petition, set aside the impugned order granting bail to the respondent, and directed the respondent to surrender immediately.
This petition, under Section 439(1) of the Code of Criminal Procedure, has been filed by the Assistant Director, Directorate of Revenue Intelligence, 14, Gopalakrishna (Iyer) Road, T. Nagar, Madras-17, the complainant, praying for the cancellation of the bail granted by the learned Principal Sessions Judge, Madras to the respondent by name Abdul Rasheed in Criminal Miscellaneous Petition No. 3732 of 1993 dated 23-7-1993.
2.But for the interesting legal question being raised in this case, I do not propose to interfere with the order of bail granted by the learned Principal Sessions Judge noted supra.
3.The facts which led to the prosecution against the respondent herein are stated in brief as follows :
On the basis of an intelligence about the commission of an offence under the N.D.P.S. Act that the respondent herein was going to receive narcotic drug from one Mahesh who was arriving by Grand Trunk Express on 8-7-1993, the petitioner herein, who is the complainant and his staff, maintained surveillance at the lodge in Madras where the respondent herein was staying, as well as in the Central Railway Station and thereby, watched the movements very closely. On the arrival of the said train, the respondent herein received two persons from the said train and all the three were returning jointly. When they are intercepted and enquired, their names and places were revealed. On further questioning, they had replied, that they were not in possession of any narcotic drugs, which was followed by the search of their luggage. While doing, so, Mahesh Rathod admitted that he was in possession of one kilogram of Heroin in his suit case. Then on the search of the luggage of the said Mahesh, the petitioner recovered two cloth bags, which contained the contraband of Heroin. But however the luggage of the other did not contain any contraband or any incriminating document. But significantly, on the personal search of the respondent herein, the petitioner had recovered certain incriminating documents. Then, following the procedure prescribed by the rules, the contents of the two cloth bags packed in polythene bags were seized under the cover of mahazar, in the presence of the respondent and the other two accused and in the presence of two independent witnesses. All of them were then brought to the office of the D.R.I. and detained for examination, where, the said cloth bags and the polythene bags were opened and the brown coloured powder contained in the said bags were tested with Narcotics Test Kit and the said powder answered positive for Heroin. Then after weighing the same, samples were taken as contemplated by law for chemical examination under a mahazar in the presence of same witnesses and in front of the said accused persons.
4.In the preliminary interrogation made by the petitioner Mahesh Rathod, the first accused had stated, that he had brought the Heroin from Mandsaur for handing over to the respondent herein and that he had brought the other accused for the purpose of safe transport as an escort. The respondent herein also had stated that he was to receive the said contraband from Mahesh and hand over to Rahamathullah, who had come from Dindigul and was staying in Tanikachalam Leather Company at Lalakutty Street, Periamet, Madras. It is also the case of the petitioner, that the respondent had stated, that he had come to receive the heroin on the instructions of one Sikkander (A5), for the purpose of handing over the same to Rahamathullah (A4). To this extent Rahamathullah had also admitted the same. Following the above, messages over telephone, were transmitted to the Officials at Trichy, to cause search of the residence of the said Sikkander of Dindigul and serve summons upon him to make his appearance for enquiry. But however, on search, no contraband or incriminating documents were recovered or seized. The said Sikkander appeared before the petitioner 9-7-1993 arid admitted his involvement. Likewise, room No. 101 of the Golden
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