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1999 Supreme(Mad) 1146
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. THANGARAJ
R. PAULSAMY
Versus
SUPERINTENDENT, NARCOTIC CONTROL BUREAU, CHENNAI
Crl.O.P.13269 Of 1999
Decided On : 05-11-1999
The mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, such as informing the accused of the grounds of arrest and sending a full report of the arrest and seizure to the immediate official superior within forty-eight hours, are mandatory and failure to comply with these provisions would entitle the accused to an acquittal.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37(1)(B)(II) - CONDITIONS FOR GRANT OF BAIL - REASONABLE GROUNDS FOR BELIEVING THAT THE ACCUSED IS NOT GUILTY AND NOT LIKELY TO COMMIT ANY OFFENCE WHILE ON BAIL - MANDATORY PROVISIONS OF THE ACT NOT COMPLIED WITH - ACCUSED ENTITLED TO BAIL.
Fact of the Case:
The petitioner, a public servant employed under the Narcotic Control Bureau, was arrested for possession of 2 kgs of heroin. He filed a bail application, which was dismissed. He then filed a Special Leave Petition (Cr1.) No. 2800/98 before the Supreme Court of India, which was dismissed on the ground that he was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. Subsequently, the petitioner moved before the Supreme Court in W.P. (Cr1.) No. 194/98 and the order of detention was quashed. Thereafter, the petitioner filed the present application for bail.
Finding of the Court:
The court held that the petitioner was entitled to bail as there were reasonable grounds for believing that he was not guilty of the offence and that he was not likely to commit any offence while on bail. The court found that the mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, such as informing the accused of the grounds of arrest and sending a full report of the arrest and seizure to the immediate official superior within forty-eight hours, were not complied with. The court also noted that the petitioner had no previous convictions under the Act and that there was no substantial reason to show that he would commit a similar offence if released on bail.
Issues: 1. Whether the petitioner is entitled to bail under Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985? 2. Whether the mandatory provisions of the Act were complied with in the present case?
Ratio Decidendi: 1. The court held that the petitioner was entitled to bail under Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, as there were reasonable grounds for believing that he was not guilty of the offence and that he was not likely to commit any offence while on bail. 2. The court found that the mandatory provisions of the Act, such as informing the accused of the grounds of arrest and sending a full report of the arrest and seizure to the immediate official superior within forty-eight hours, were not complied with.
Final Decision: The court allowed the petition and directed the release of the petitioner on bail on his executing a bond for a sum of Rs. 10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of the Special Judge for N.D.P.S. Act cases, Madurai. The petitioner was also directed to reside at Madras and appear before the Assistant Director, Narcotic Control Bureau, Chennai at 10.00 a.m. and 5.00 p.m. every day until further orders.
S. THANGARAJ, J.
( 1 ) THE petitioner/accused No. 1 in C. C. No 521/98 on the file of the Special Judge for N. D. P. S. Act cases, Madurai has filed this petition for his release on bail.
( 2 ) THE respondent has filed a complaint against the petitioner and another accused for offences under Section 6 (c) punishable under Sections 21, 27 - A. 28 and 29 of the N. D. P. S. Act, 1985 and under Sections 193 and 120-B, I. P. C. and the said complaint was taken on file by learned Special Judge for N. D. P. S. Act cases, Madurai in C. C. No. 521/98.
( 3 ) THE petitioner herein and other accused are public servants employed under the Narcotic Control Bureau at Madurai and Tirunelveli respectively. The respondent received a specific information that the petitioner herein along with others was indulging in trafficking and that around 2 kgs. of heroin was in the possession of the petitioner at his room No. 116. Thiruchenduran Mansion, Vasantha Nagar, Madurai 5. On receipt of the information, the Officers of Narcotic Control Bureau, South Zonal Unit, Chennai went to the said premises and seized 2 kgs. of heroin on being produced by the petitioner herein. After observing all necessary formalities the petitioner was arrested on 8-5-1998.
( 4 ) EARLIER the petitioner has filed a bail application in Cr1. O. P. No. 8785/98. His Wife Trot Gladys Lilly who is the second accused in the complaint, also filed a bail application in Cr1. O. P. No. 9305/98. One Madhavan and another, Karunakaran were originally arrested in connection with this case also filed bail applications in Cr1. O. P. Nos. 9973/98 and 10074/98 on the file of this Court. After due consideration, this Court dismissed all the applications by an order dated 13-8-1998. Aggrieved by that, the petitioner has filed Special Leave to Appeal (Cr1.) No. 2800/98 before the Honourable Supreme Court of India and the same was dismissed on the ground that the petitioner was detained by an order dated 28-9-1998 passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. Subsequently the petitioner moved before the Honourable Supreme Court of India in W. P. (Cr1.) No. 194/98 and the order of detention was quashed by Their Lordships of the Supreme Court by their judgment dated 14-5-1999. Thereafter the petitioner has come forward with the present application for bail.
( 5 ) LEARNED Special Public Prosecutor for the respondent Department has filed a preliminary objection petition as to the maintainability of the present Cr1. O. P. No. 13269/99. The main contention in the preliminary objection petition is that as already this Court has analysed the entire materials, both documentary and legal and thereafter, dismissed the bail application, the judgment passed by the Honourable Supreme Court of India in W. P. (Cr1.) No. 194/98 cannot be taken as a change of circumstance in favour of the petitioner and therefore the present petition for bail will not lie.
( 6 ) LEARNED Counsel for the petitioner has argued that against the order passed by this Court Cr1. O. P. No. 8785 /98 dated 13-8-1998, the petitioner has preferred a petition for Special Leave for Appeal (Cr1.) No. 2800/98 and the same was dismissed on the ground that he was detained under Section 3 (1) of the N. D. P. S. Act and that since the said order was quashed, the petitioner can review his application for bail.
( 7 ) LEARNED Special Public Prosecutor for the respondent Department has contended that in such a situation, the application shall not lie before this Court and the petitioner can move the Honourable Supreme Court of India directly.
( 8 ) TO negative the said contention of the Department, learned Counsel for the petitioner has relied on a decision of the Supreme Court in Babu Singh v. State of U. P. , and at page 580, Their Lordships have held But an order refusing an applica
