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IN THE HIGH COURT OF ORISSA
D.M. Patnaik, J.
JAYAKRISHNA BAG AND OTHERS - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Miscellaneous Case Nos. 2578, 2705, 3047, 3126 and 3299 of 1995
Decided On : 10-01-1996
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - INTERPRETATION - APPLICABILITY DURING INVESTIGATION - BURDEN OF PROOF ON ACCUSED TO SHOW 'NOT GUILTY' - JUDICIAL DISCRETION TO GRANT BAIL - SECTION 439, CRPC - APPLICABILITY.
Fact of the Case:
Petitioners, accused of illicit drug trafficking under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), sought bail during investigation, arguing that non-compliance with mandatory search and seizure provisions under Section 42 or Section 50 of the Act would lead to their ultimate acquittal and, therefore, their continued detention was unnecessary.
Finding of the Court:
The Court held that the judicial discretion to grant bail under Section 437, CrPC, is subject to the limitation prescribed under Section 37 of the NDPS Act. The Court interpreted Section 37(1)(b) of the NDPS Act to mean that once the prosecution shows recovery of contraband substance from the accused's possession, the accused is considered 'guilty' for the limited purpose of bail under that section. The burden then shifts to the accused to show that they are 'not guilty'.
Issues: 1. Whether the accused can be considered 'not guilty' if there is non-compliance with mandatory search and seizure provisions under the NDPS Act, leading to their ultimate acquittal? 2. Whether the accused can discharge the burden of proving 'not guilty' during investigation? 3. Whether Section 37 of the NDPS Act is applicable at all stages of the proceeding, including investigation and trial? 4. Whether Section 439, CrPC, can be applied in cases where Section 37 of the NDPS Act is applicable?
Ratio Decidendi: 1. The Court held that the accused cannot be considered 'not guilty' merely because of non-compliance with mandatory search and seizure provisions, as the intention of the legislature and the spirit behind Section 37 of the NDPS Act is to consider the accused 'guilty' for the limited purpose of bail once recovery of contraband substance is shown. 2. The Court held that the accused cannot discharge the burden of proving 'not guilty' during investigation until the police papers are supplied to them, as per the apex Court's decision in Union of India v. Thamisharusi. 3. The Court held that Section 37 of the NDPS Act is applicable at all stages of the proceeding, including investigation and trial, as it does not prevent the accused from being released on bail if they can show at any stage that they are 'not guilty'. 4. The Court held that Section 439, CrPC, cannot be applied in cases where Section 37 of the NDPS Act is applicable, as the stringent provisions of Section 37 override the general provisions of Section 439, CrPC.
Final Decision: The Court dismissed the bail petitions, holding that the accused had not discharged the burden of proving 'not guilty' and that the judicial discretion to grant bail under Section 37 of the NDPS Act should not be exercised in cases of serious offenses like illicit drug trafficking.
JUDGMENT :
D.M. Patnaik, J. - In the above cases the petitioners move for bail for alleged offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the 'Act').
2. The collective voice of the petitioner's counsel in all these cases and other cases of similar nature manifests in their devoutness in human dignity and liberty, when Mr. Deepak Mishra, learned counsel for one of the petitioners as a prelude to his argument leferred to the sying of atrick Henery "give me liberty or give me death" quoted by one of the learned Judges of this Court in the case of Mangal Hemrum and Others Vs. State of Orissa, .
3. Liberty is fundamental and precious to everybody. Man is a divine being. He lives in the society and therefore, claims right, liberty and equality. Human rights cannot be evaluated in isolation. They have to be read in the social context. Liberty of an individual can be curtailed in a given situation when exercise of that right of the individual works out to the detriment of another individual and the society at large. As Justice Krishna Iyer observed in the case of Babu Singh and Others Vs. State of U.P. "after all personal liberty of an accused or a convict is fundamental, suffering lawful eclips only in terms of procedure established in law. The last four words of the Article 21 are the life of that human right".
4. Therefore, liberty of free movement can be curtailed in a given case but through legal procedure alone. We may, therefore, examine whether release of the petitioners on bail should be allowed as claimed by them.
5. The petitioners face indictment for offences in illicit drug trafficking and some of them are in custody pending investigation. They seek release on bail on the logic that if, because of the violation of the mandatory provisions of the Act relating to search and seizure etc. u/s 42 or Section 50 as has been held by the apex Court in the case of State of Punjab v. Balbir Singh reported in AIR 1954 SC 1872, proceeding are vitiated and they will be ultimately acquitted, there is no reason for their further detention in custody.
6. The submission is no doubt demanding, attractive and pursuasive; but keeping in view the seriousness of the offence, the legislative intent in providing a stringent provision in the matter of bail u/s 37 of the Act, to accede to such a submission would not only lead in facilitating and encouraging the offence of illicit drug trafficking but also it would frustrate the whole purpose for which the Act has been brought out in its present amended form.
It would be apposite to deal with the Court's power in exercising the judicial discretion in the matter of bail in general.
7. While dealing with the discretion to grant bail, Sulaiman, J. in the famous Meerut conspiracy case reported in K.N. Joglekar Vs. Emperor, held as under:
"There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there should be a judicial exercise of that discretion. It is not only one single circumstance which necessarily concludes the decision but it is the cumulative effect of all the combined circumstances that must weigh with the Court. The considerations are too numerous to be classified its catalogued exhaustively."
8. Tek Chand, J. in the case of Rao Harnarain Singh Sheoji Singh and Others Vs. The State while dealing with a case u/s 487, Cr PC (old Code) held that the probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail particularly in case in which evidence has not so far been led. The Courts while deciding such applications will be traversing beyond their proper ambit and would be exceeding the limits of their function if they engage themselves in discovering the guilt or innocence of the accused-appellant which can only be determined at the trial stage.
It was further reasoned that the fact that the accused persons have been
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