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1992 Supreme(P&H) 279
PUNJAB & HARYANA HIGH COURT
S.S.Rathor, J.
Dayanand
Versus
State Of Haryana
Criminal Misc. No. 1040 of 1992,
Decided On : FEBRUARY 26, 1992
Section 37 of the NDPS Act does not bar the grant of bail but imposes certain conditions and limitations on the exercise of such power.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - SECTION 439 CRPC - SECTION 50, 52, 53, 57 - SUMMARY - The court discussed the scope of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and its impact on the grant of bail under Section 439 of the Code of Criminal Procedure (CrPC). The court held that Section 37 of the NDPS Act does not bar the grant of bail but imposes certain conditions and limitations on the exercise of such power.
Fact of the Case:
The petitioner was arrested for allegedly possessing 100 grams of Charas. He was denied bail by the trial court on the ground that Section 37 of the NDPS Act barred his release. The petitioner challenged the trial court's order in the High Court.
Finding of the Court:
The High Court held that Section 37 of the NDPS Act does not bar the grant of bail but imposes certain conditions and limitations on the exercise of such power. The court found that the mandatory provisions of the NDPS Act, such as those relating to the search and seizure of contraband, had not been complied with in the present case. The court also noted that the petitioner had no prior convictions and had given an assurance that he would not commit any offence while on bail.
Issues: 1. Whether Section 37 of the NDPS Act bars the grant of bail under Section 439 of the CrPC? 2. Whether the mandatory provisions of the NDPS Act had been complied with in the present case?
Ratio Decidendi: 1. The court held that Section 37 of the NDPS Act does not bar the grant of bail but imposes certain conditions and limitations on the exercise of such power. The court relied on the Supreme Court's decision in Usmanbhai Dawoodbhai Memon and others v. State of Gujarat, wherein it was held that the High Court has the power to grant bail under Section 439 of the CrPC even in cases where the accused is charged with an offence under the TADA. 2. The court found that the mandatory provisions of the NDPS Act, such as those relating to the search and seizure of contraband, had not been complied with in the present case. The court noted that the police had not obtained the petitioner's consent to be searched in the presence of a gazetted officer and had not recorded any reasons for not doing so. The court also noted that the police had not prepared a sample of the contraband and had not taken it into possession along with the remaining material.
Final Decision: The court allowed the petitioner's bail application and directed him to furnish personal and two surety bail bonds each of the amount of Rs. 25,000/- to the satisfaction of the Chief Judicial Magistrate, Rohtak.
S.S.Rathor, J.
1. In this partition under section 439 of the Criminal Procedure Code, the petitioner has sought his release on bail during the pendency of trial in a case with the allegations against him that on December 11, 1991, Shri Jagdish Nagar, S.H.O. Police Station Sadar Rohtak alongwith other police officials was on patrol duty and saw the petitioner getting down from a truck. On suspicion, petitioner was apprehended and on his search, 100 grams of Charas wrapped in a polythene paper was recovered. As the petitioner could not produce any licence for keeping the said contraband, a sample weighing 10 grams was prepared and taken into possession alongwith the remaining material. The petitioner has emphatically denied the allegations of the prosecution. In addition, it is contended that a perusal of the F.I.R. does not show that the petitioner was given the option of being produced and searched in the presence of a gazetted Officer. Though the police party was on patrol duty for detecting commission of crime in the area, yet no independent witness from the general public was joined in the said patrolling operation. Further, it does not find mention in the First Information Report that any reasons were recorded and conveyed to the petitioner in terms of Section 50 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the `Act).
2. Bail has been declined to the petitioner by the trial Court primarily on the ground that he is not entitled to bail in view of Section 37 of the Act, as so observed by the Supreme Court in a case reported as Narcotics Control Bureau v. Kishan Lal and others, 1991 Supreme Court Cases (Crl.) 265. Feeling aggrieved against the order of the trial Court, the petitioner approached this Court for concession of bail during the pendency of trial in terms in Section 439 Cr.P.C. and Section 37 of the Narcotic Act.
3. A few Courts in the country have almost adopted negative approach to the grant of bail in view of Section 37 of the Act, presumably under the impression that the said provisions are complete bar to the grant of bail. In fact, it is not so, as so clearly laid down by the Supreme Court in its aforesaid decision rendered in Kishan Lals case (supra). On perusal of the observations in the said judgement, it is apparent that this Court has every power to grant bail in terms of Section 439 of the Code but the said powers are controlled and regulated by Section 37 of the Act and facts of each case are to be appreciated in the light of the limitations imposed therein.
4. It is worth mentioning that while delivering judgment in Kishan Lals case (supra), the Supreme Court had placed reliance and extended full approval to the ratio of its previous judgment rendered in Usmanbhai Dawoodbhai Memon and others v. State of Gujarat, 1988(1) R.C.R.(Criminal) 540 : A.I.R. 1988 SC 922, wherein it was held that in view of Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, the High Court has no jurisdiction to entertain an application for bail under Section 439 Cr.P.C. read with Section 29 (8) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the `TADA). Section 20 (8) of the TADA and Section 37 of the NDPS Act are identical in nature. However, while interpreting the scope of Section 439 Cr.P.C. as limited by Section 20 (8) of the TADA, the Honble Supreme Court observed as under in Usmanbhais case (supra) :-
"23. That takes us to the approach which a designated Court has to adopt while granting bail in view of the limitations placed on such power under section 20 (8). The sub-section in terms places fetters on the power of a Designated Court on grating of bail and the limitations specified therein are in addition to the limitations under the Code. Under Section 20 (8) no person accused of an offence punishable under the Act or rule made thereunder shall, if in custody be released on bail or on his own bond
