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1997 Supreme(P&H) 1329
PUNJAB & HARYANA HIGH COURT
Harphul Singh Brar, J.
Rajbir Singh
Versus
State Of Haryana
Criminal Misc No. 11359 of 1997,
Decided On : SEPTEMBER 2, 1997
The High Court's powers to grant bail under Section 439 Cr.P.C. are subject to the limitations contained in the amended Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the mandatory provisions of Section 37 must be considered before granting bail.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - LIMITATIONS ON GRANTING BAIL - HIGH COURT'S POWERS TO GRANT BAIL SUBJECT TO SECTION 37 - MANDATORY PROVISIONS OF SECTION 37 TO BE CONSIDERED BEFORE GRANTING BAIL - SMALL QUANTITY OF POPPY HUSK RECOVERED OR TIME SPENT IN JAIL NOT BASIS FOR GRANTING BAIL - COURT MUST BE SATISFIED THAT THERE ARE REASONABLE GROUNDS TO BELIEVE ACCUSED IS NOT GUILTY AND NOT LIKELY TO COMMIT OFFENCE WHILE ON BAIL.
Fact of the Case:
The applicant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to 10 years rigorous imprisonment and a fine of rupees one lac. He filed an application for bail pending appeal, arguing that no case was made out against him as the mandatory provisions of the Act, particularly of Section 50, had not been complied with. He also contended that only 11 kgs of poppy husk had been recovered from him and that he had already remained in jail for about 14 months.
Finding of the Court:
The court held that it could not go into the question of whether a case was made out against the applicant as the appeal was pending in the High Court. The court also held that the powers of the High Court to grant bail under Section 439 Cr.P.C. are subject to the limitations contained in the amended Section 37 of the Act and that the mandatory provisions of Section 37 must be considered before granting bail. The court further held that the small quantity of poppy husk recovered or the time spent in jail are not the basis given in the Act for releasing the accused on bail.
Issues: 1. Whether the High Court can grant bail to an accused convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 without considering the mandatory provisions of Section 37 of the Act? 2. Whether the small quantity of poppy husk recovered or the time spent in jail are relevant factors to be considered while granting bail under the Act?
Ratio Decidendi: 1. The High Court's powers to grant bail under Section 439 Cr.P.C. are subject to the limitations contained in the amended Section 37 of the Act. 2. The mandatory provisions of Section 37 must be considered before granting bail under the Act. 3. The small quantity of poppy husk recovered or the time spent in jail are not relevant factors to be considered while granting bail under the Act.
Final Decision: The court dismissed the bail application, holding that the applicant had not satisfied the mandatory provisions of Section 37 of the Act.
Harphul Singh Brar, J.
1. This is an application for bail pending appeal in the High Court. The applicant-appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) and sentenced to 10 years rigorous imprisonment and a fine of rupees one lac. In default of payment of fine the accused was further ordered to undergo rigorous imprisonment for two years.
2. The learned counsel for the applicant-appellant (hereinafter called the applicant) contends that no case is made out against the applicant as the mandatory provisions of the Act, particularly of Section 50, have not been complied with. The learned counsel further contends that only 11 kgs of poppy husk has been recovered from the applicant and that he has already remained in jail in this case for about 14 months. In these circumstances, learned counsel urges that the applicant may be allowed bail during the pendency of the appeal. He has cited the following authorities of this Court in order to substantiate his contentions :-
(i) Jeet Singh alias Jeeti v. State of Punjab, 1995(2) RCR 588.
(ii) Karnail Singh v. State of Haryana, 1996(1) RCR 137.
(iii) Lakhwant Singh v. State of Punjab, 1996(3) RCR 834.
(iv) Mubarik v. State of Haryana, 1996(2) RCR 656.
3. So far as the contention of the learned counsel that no case is made out against the applicant is concerned, I cannot go into this question as the appeal of the applicant is pending in the High Court. The applicant stands convicted under Section 15 of the Act by the trial Court and that matter shall be decided only when the appeal comes up for final hearing.
REGARDING BAIL :
4 The powers of the Court to grant bail under Section 439 Cr.P.C., are subject to the limitations contained in the amended Section 37 of the Act and the restrictions placed on the powers of the Court in this section are applicable to the High Court also in the matter of granting bail. This point of law has already been decided as far back as in the year 1991 by the Supreme Court in Narcotics Control Bureau v. Kishan Lal and others, 1991(1) Recent CR 338. Similar view has been taken by a Division Bench of this Court in Crl. Misc No. 12027 of 1995 in Crl. Appeal No. 143-SB-95 Surjit Singh v. State of Punjab.. It has been held by the Division Bench, therein, that before bail is granted to a person convicted for an offence under the Act, the provisions of Section 37 would be kept in view. Relevant portion of the order in Surjit Singhs case (supra), is reproduced as under :-
"We, however, should not be held to mean that the grant of bail to a person convicted for an offence under the Act should flow easily as traffic in drugs has assumed alarming proportion. We, therefore, further endorse the decision of the Division Bench of the Delhi High Court and hold that before bail is granted to a person convicted for an offence under the Act, the provisions of Section 37 would be kept in view."
Anyhow, we need not to go to the orders of the High Courts when the Supreme Court has finally held in Narcotic Control Bureaus case (supra), that grant of bail under Section 439 Cr.P.C. is subject to the limitations contained in the amended Section 37 of the Act.
5. Now, it becomes necessary to refer to Section 37 of the Act which speaks of the limitations on granting of bail under the Act and it reads as under :-
"37. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 - (a) every offence punishable under this Act shall be cognizable;
(b) No person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that
