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1993 Supreme(Ori) 110
High Court Of Orissa
B. L. HANSARIA, R. K. PATRA
HADIANI DEI - Appellant
Versus
STATE OF ORISSA - Respondent
ORIGINAL JURDN. CASE 2091 Of 1993
Decided On : 09/14/1993
D.P.Dhal, S.K.DAS GUPTA, S.K.Nayak
Headnote:Narcotic Drugs & Psychotropic Substances Act; 1985 - Section 37(b)(ii) Petitioner released on bail in an offence under the Act during the state of investigation - Whether she is required to be remanded to judicial custody on cognizance of offence being taken by the session Judge because of non-fulfilment of the requirements mentioned in Section 37(b)(ii) of the Act? No.
Held: When during investigation a person is released on bail, which order of bail has to be treated as one under 437(1) or (2) or section 439(1) because of which cancellation could be made under the corresponding provisions of section 437 or section 439 and on the grounds germane to such cancellation. May it be stated here that power of release on bail under the Act either by the Magistrate or a Special Court is same as that visualised by section 167, Cr. P.C. as would appear from clauses (b) and (c) of sub-section (1) of section 36 A of the Act. No doubt. Section 37 of the Act starts with a non-obstante clause: (Notwithstanding anything contained in the Code of Criminal Procedure, 1973'): what has been stated in clause (b) (ii) of section 37 of the Act would be applicable, according to us, when the question of release on bail is being considered. But, once an accused has been released even without satisfying the requirements in question, the normal criminal law would spring into action and bail would be open to be cancelled only on the grounds on which bail can be otherwise cancelled, the important grounds relating to which have been mentioned in paragraph 11 of Aslam Babalal's case, the same, being: (i) where the accused misuses his liberty by indulging in similar criminal activity; (ii) interferes with the course of investigation; (iii) attempts to tamper with evidence or witnesses; (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation; (v) there is likelihood of his fleeing to another country; (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency; (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are of course illustrative and not exhaustive. Remand to custody merely because of non- fulfilment of the requirements of sub-clause (ii) would real1y amount to review of the earlier order, which is not permissible, in view of what has been - stated in section 362 of the Code, which provision applies to proceedings before the special court (or till constitution of such Courts before the Courts of Session). This is what has been held by the single Judge of this Court in Ramesh Chandra's case also. (Para 11)
Result: Petition allowed.
Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 37 (b) (ii) - Criminal Procedure Code, 1973 - Section 439 - Petitioner release on -bail during investigation on the ground that material available on record were no sufficient to connect petitioner with seized hemp plants - Whether petitioner is required to be remanded on cognizance being taken by Sessions Judge, because of non-fulfillment of the requirements of Section 37(b)(ii) of the Act? No.
Held: Remand to custody merely because of non-fulfillment of the requirement of sub-clause (ii) would really amount to review of the earlier order, which is not pennissible, in view of what has been stated in Section 362 of the Code, which provision applies to proceedings before the special Court (or till Constitution of such Courts before the Courts of Session). This is what has been held by the Single Judge of this Court in Ramesh Chandra's case also. (Para 9)
Result: Petition allowed.
HANSARIA, C. J.
( 1 ) THE short but important point for determination is as to whether a person who is accused of an offence under the Narcotic Drugs and Psychotropic Substances Act, hereinafter "the Act", and has been released on bail during the state of investigation is required to be remanded to jail custody cognizance of the offence being taken by the Sessions Judge because of nonfulfilment of the requirements mentioned in Section 37 (b) (ii) of the Act, namely, reasonable ground for believing that the person concerned is not guilty of the offence and he is not likely to commit any offence while on bail.
( 2 ) THE facts lie within a narrow compass. What had happened was that the petitioner against whom a case had been registered under the Act had been released on bail by an order passed by the Sessions Judge, Puri on 17-6-1992. That order had come to be passed during the stage of investigation on the ground that the materials available on record were not sufficient to connect the petitioner with the seized hemp plants. Subsequently, an inquiry under Section 202 of the Code of Criminal Procedure was made and a prima facie case being made out, cognizance of the offence was taken by the Sessions Judge, Puri. The Sub-Divisional Judicial Magistrate, Nayagarh had directed the petitioner to appear before the Sessions Judge on 6-1-1993. On that day, the accused filed a petition to release her on bail on the ground that she was on bail granted previously. The Public Prosecutor opposed the same by stating that in view of the restrictions mentioned in Section 37 ( b) (ii) of the Act, the accused was not entitled to bail. The learned Sessions Judge accepted the submission and remanded the accused to jail custody.
( 3 ) IT has been contended by Shri Nayak that the accused could not have been remanded to custody because of the restrictions mentioned above inasmuch as the present being a case of cancellation of bail, the same could have been done only on satisfaction of those conditions which have normally exist for cancellation of bail, like misuse of liberty, tampering of evidence, attempt to abscond, etc. These being not there, bail could not have been cancelled.
( 4 ) IN support of his submission, Shri Nayak seeks to place reliance on two decisions in the main; these being: (1) Free Legal Aid Committee v. State of Bihar,
AIR 1982 SC 1463 : (1982 Cri LJ 1943) and (2) V. Chinna Reddy v. N. Vidyasagar Reddy, 1982 Cri LJ 2183, which is a judgment of a learned Single Judge of Andhra Pradesh High Court.
( 5 ) A perusal of the aforesaid decisions shows that none of the two really assists us to decide the point involved inasmuch as in the first case the matter which was brought to the notice of the Apex Court by the Free Legal Aid Committee was that in a case triable by the Court of Session, the practice being followed by the Magistrate in Bihar while releasing the accused on bail had been that the same is granted only during the pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Session, he is rearrested and brought before that Court where he has to be apply once again for fresh bail, which causes considerable inconvenience to the accused without any corresponding advantage in so far as administration of criminal justice is concerned. The Court observed that this situation could easily be avoided if the Magistrate while releasing the accused on bail requires execution of bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him, but also to appear when called upon in the Court of Session. This was held to be permissible because of what has been stated in Section 441 (3), Cr. P. C. read with what has been provided in Section 209 (b) of the Code.
( 6 ) CHINA Reddy's case was one where anticipatory bail had been granted by the Court of Session, because of which it was stated that the committing Magistrate had no juris
