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1998 Supreme(Ori) 72
High Court Of Orissa
P. K. TRIPATHY
MADAN MOHAN BHANJA DEO - Appellant
Versus
UNION OF INDIA - Respondent
CRI. MISC. 644 Of 1998
Decided On : 03/18/1998
The restriction imposed under Section 37 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is applicable only to offenses punishable with a minimum sentence of 5 years and not to offenses punishable with a maximum sentence of 5 years.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 20 (B) (I) AND SECTION 21 - SECTION 37 (1) - INTERPRETATION AND APPLICATION - BAIL APPLICATION - CONDITIONS AND RESTRICTIONS.
Fact of the Case:
Petitioner, charged under Section 20 (b) (i) and Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, applied for bail under Section 439 of the Code of Criminal Procedure, 1973, read with Section 37 (1) of the Act.
Finding of the Court:
The court held that the restriction imposed under Section 37 (1) of the Act is applicable to offenses punishable with a minimum sentence of 5 years and not to offenses punishable with a maximum sentence of 5 years, as in the case of Section 20 (b) (i) of the Act.
Issues: Whether the restriction imposed under Section 37 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, is applicable to offenses punishable with a maximum sentence of 5 years, such as the offense under Section 20 (b) (i) of the Act.
Ratio Decidendi: The court relied on the precedents set by the Orissa High Court in Rajendra Panda v. State of Orissa and Balbir Singh v. State of Orissa, which held that Section 37 of the Act is applicable to offenses punishable with a minimum sentence of 5 years. The court distinguished the cases of Gunanidhi Chand v. State of Orissa, A. V. Dharma Singh v. State of Karnataka, and Kamlesh Kumar v. State of Bihar, which had taken a contrary view.
Final Decision: The court rejected the petitioner's bail application, holding that a prima facie case existed against him and that the stringent conditions for bail under Section 37 of the Act were not met.
P. K. TRIPATHY, J.
( 1 ) THIS relates to an application for bail prayed under Section 439 of the Code of Criminal Procedure, 1973 (in short 'the Code' ). Keeping in view the fact that petitioner is involved for an offence under Section 20 (b) (i) and Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') the bail application has to be read as an application under Section 439 of the Code read with Section 37 (1) of the Act.
( 2 ) CHARGE for the aforesaid offences has been framed against the petitioner on 5-2-1998 on the allegation that he was found in possession of 15 gms. of Ganja preparation (canabis) and that he was also found in unlawful possession of manufactured drugs (Modaks) and preparation thereof.
( 3 ) MAIN thrust of the contention of Mr. Manoj Mishra, learned counsel for the petitoiner is that in view of the ratio in the case of Gunanidhi Chand v. State of Orissa, (1997) 13 OCR 331, maximum punishment prescribed for the offence under Section 20 (b) (i) of the Act being five years restriction prescribed in Section 37 (1) of the Act relating to bail is not applicable to such a case. His further contention is that in view of the ratio in the cases of Durga Prasad Mohanty v. State of Orissa, (1991) 4 OCR 216 and Nanda Parida v. State of Orissa, (1984) 57 CLT 448, the confessional statement of the co-accused cannot be regarded as establishing a prima facie case and in such case prayer for bail should be allowed. Mr. H. K. Jena, learned Sr. Standing Counsel (Central) disputing the aforesaid contention argued that there exists a prima facie case and in view of the restriction imposed under S. 37 (1), prayer for bail should not be entertained. He added that petitioner having also been charged for the offence under S. 21 of the Act where minimum punishment prescribed is 10 years, the aforesaid contention of Mr. Mishra is not acceptable.
( 4 ) IN the case of Gunanidhi Chand (supra) this Court considered the question that in view of the punishment prescribed under S. 20 (b) (i) of the Act, whether the restriction imposed under S. 37 (1) of the Act is applicable to that offence. In that context, it took note of the cases of Bimbadhar Behera v. State of Orissa, (1993) 6 OCR 185 : (1993) 75 CLT 719, Soodha Somana v. State (1991) 4 OCR 437, State v. Surendranath (1990) 3 OCR 462 and held that :-"the importance of the language 5 years or more in the context has expressly not been answered"but referring to and relying upon the decision in the cases of Kamlesh Kumar v. State of Bihar, 1994 (3) Crimes 671 and A. V. Dharma Singh v. State of Karnataka, 1993 Cri LJ 94 it was held that :-"7. I am, therefore, of the considered view that Section 37 (1) (b) is applicable only in case the offence is punishable with minimum sentence of 5 years and therefore for an alleged offence under Section 20 (b) (i) the bar under Section 37 (1) (b) is not attracted. "in the case of Balbir Singh v. State of Orissa (1996) 11 OCR 9 : (1996 Cri LJ 3068) a similar contention was raised that Section 37 has no application if the offence is punishable under S. 20 (b) (i) of the Act and the above noted cases of A. V. Dharma Singh (supra) and Kamlesh Kumar (supra) were relied upon. In that context, this Court held that :-"it was first contended that the alleged offence under S. 20 (b) of the Act is punishable with imprisonment which may extend to five years and as such the bar under S. 37 of the Act may not be applicable. It is submitted that the bar under S. 37 of the Act may not be applicable. It is submitted that the bar under S. 37 should be made applicable to offences punishable with minimum five years of imprisonment. Inspiration for the aforesaid submission is drawn from the decision of the Karnataka High Court reported in 1993 Cri LJ 94 (A. V. Dharmasingh v. The State of Karnataka by the State Public Prosecutor) and the decision of the Patna High Court reported in 1994 (3) Crimes 671 (Kamlesh Kumar v. State of Bihar
