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1992 Supreme(P&H) 284
PUNJAB AND HARYANA HIGH COURT
S.S. Rathor, J.
Baram Khan @ Chottu Khan - Petitioner
Versus
State of Haryana - Respondent
Criminal Misc. No. 1104-M of 1992.
Decided On : 26 February, 1992
For the Petitioner:Mr. Ajay Lamba, Advocate.
For the Respondent: Mr. M.S. Yadav, AAG Haryana.
The provisions of Section 37 of the NDPS Act and Section 20(8) of the TADA place fetters on the power of a Designated Court in granting bail, but they do not curtail the powers of the court under Section 439 of the CrPC.
Headnote:
{'KEYWORD': 'BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 - SECTION 20(8) - CRIMINAL PROCEDURE CODE, 1973 - SECTION 439', 'SUBJECT': 'Grant of Bail in Cases Involving Offences Under the Narcotic Drugs and Psychotropic Substances Act, 1985', 'ACT SECTION LIST': ['SECTION 37 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985', 'SECTION 20(8) OF THE TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987', 'SECTION 439 OF THE CRIMINAL PROCEDURE CODE, 1973']}
Fact of the Case:
The petitioner was arrested for possession of 2 qtls. 70 kgms. of "Chura Post" during a raid conducted by the police on his premises. The petitioner denied the allegations and contended that the provisions of Sections 50, 52, 53, and 57 of the NDPS Act were not complied with during the investigation.
Finding of the Court:
The court held that the provisions of Section 37 of the NDPS Act and Section 20(8) of the TADA place fetters on the power of a Designated Court in granting bail. The court further held that the provisions of Sections 50, 52, 53, and 57 of the NDPS Act are mandatory in nature and must be strictly complied with during the investigation.
Issues: 1. Whether the provisions of Section 37 of the NDPS Act and Section 20(8) of the TADA curtail the powers of the court under Section 439 of the CrPC? 2. Whether the provisions of Sections 50, 52, 53, and 57 of the NDPS Act were complied with during the investigation?
Ratio Decidendi: 1. The court held that the provisions of Section 37 of the NDPS Act and Section 20(8) of the TADA do not curtail the powers of the court under Section 439 of the CrPC, but they impose certain conditions and limitations on the grant of bail. 2. The court held that the provisions of Sections 50, 52, 53, and 57 of the NDPS Act are mandatory in nature and must be strictly complied with during the investigation. However, the court also held that the compliance of these provisions can be proved by the prosecution during the trial.
Final Decision: The court granted bail to the petitioner on the condition that he furnishes personal and two surety bail bonds each of the amount of Rs. 25,000/- to the satisfaction of the Chief Judicial Magistrate, Hissar.
S.S. Rathor, J. - In this petition 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 January 4, 1992, he was found in possession of two qtls. 70 kgms.of "Chura Post" when his house was raided by Sub Inspector/Station House Officer of Police Station, Bhatiu Kalan, alongwith other Police Officials. The raid was conducted on the premises of the petitioner on the receipt of some secret information and before reaching at the raided place, Deputy Superintendent of Police of Sub Division Fatehbad was also sounded, who also came present at the spot later on. It is further alleged that the First Information Report and recovery of the aforesaid contraband was got effected in the presence of said Deputy Superintendent of Police and one independent witness Surja Ram.
2. The petitioner has emphatically denied the allegations of the prosecution. In addition, it is contended that there is no mention in the FIR that on receipt of the secret information any Ruqqa was sent to the Police Station of the substance of information received. Even no such Ruqqa is alleged to have been sent after the alleged recovery in the presence of the Deputy Superintendent of Police. Moreover, two witnesses of the locality were required to be joined, but not joined before conducting raid on the premises of the petitioner in terms of Section 100(4) of the Criminal Procedure Code, 1973(hereinafter referred to as the Code). Further it does not find mention in the FIR that any reasons were recorded and served on the petitioner.In terms it was held that in view of Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the High Court has no jurisdiction to entertain an application for bail under Section 439 Criminal Procedure Code read with section 20(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 Criminal Procedure Code 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 placed fetters on the power of a Designated Court on granting 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 any rule made thereunder shall, if in custody be released on bail or on his own bond unless the two conditions specified in Clause(a) and (b) are satisfied. In view of these more stringent conditions a Designated court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. Since before granting bail the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail the allegations of fact the police report alongwith the statements in the case diary and other available materials should be closely examined. A prayer for bail ought not to be rejected in a mechanical manner".
3. The above observations of the Supreme Court make it clear that a Court should examine every case coming before it for finding out whether the provisions of the act apply to the facts of the case or not. Pertinent observations were also made that before granting bail, the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of fact, the police report alongwith the sta
