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High Court Of Madhya Pradesh
V. D. GYANI
MARI APPA - Appellant
Versus
STATE OF M.P. - Respondents
MISC. CRI. CASE 2128 Of 1989
Decided On : 02/06/1990
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT - SECTION 37 - BAIL - REASONABLE GROUNDS FOR BELIEVING ACCUSED NOT GUILTY - INTERPRETATION AND APPLICATION - PROCEDURAL SAFEGUARDS - COMPLIANCE - RELEVANCE IN CONSIDERING BAIL - CONSTITUTIONAL RIGHTS - PERSONAL LIBERTY - BALANCE WITH OBJECT OF ACT.
Fact of the Case:
Multiple petitions for bail were filed, raising the question of the scope and amplitude of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended in 1989). The petitioners argued that procedural lapses by the investigating agency should be considered when determining whether there are reasonable grounds to believe the accused is not guilty. They also challenged the constitutionality of Section 37, arguing that it curtailed personal liberty without due process.
Finding of the Court:
The court held that Section 37 of the Act must be strictly construed in favor of the subject, and that the safeguards provided for the protection of citizens' liberty must be liberally interpreted and applied. The court emphasized the importance of procedural safeguards in protecting against false accusations and frivolous charges, and held that due compliance with these safeguards should be considered when dealing with bail applications in such cases.
Issues: 1. Whether procedural safeguards provided under the Narcotic Drugs and Psychotropic Substances Act should be considered when determining bail under Section 37 of the Act. 2. Whether the requirement of "reasonable grounds for believing" in Section 37 is unconstitutional.
Ratio Decidendi: 1. The court held that procedural safeguards provided under the Act, such as the requirement for a search warrant and the right to be searched in the presence of a magistrate or gazetted officer, are intended to protect individuals from false accusations and frivolous charges. The court found that compliance with these safeguards is essential for ensuring that the accused's personal liberty is not arbitrarily deprived. 2. The court rejected the argument that Section 37 of the Act is unconstitutional, holding that the requirement of "reasonable grounds for believing" is not an absolute bar on the court's discretion to release an accused on bail. The court held that the satisfaction required of the court under Section 37 is based on reasonable grounds for believing that the accused is not guilty of the offense charged, and that this belief must be based on substantial probable cause.
Final Decision: The court allowed the petitions for bail, holding that the petitioners had demonstrated reasonable grounds for believing that they were not guilty of the offenses charged. The court also directed the lower courts to consider the compliance with procedural safeguards when dealing with bail applications under Section 37 of the Act.
( 1 ) THIS and other connected petitions for bail, raise and involve a common question of law as regards the scope and amplitude of Sec. 37 of the Narcotic Drugs and Psycotropic Substances Act 1985 (as amended by Amendment Act No. 2 of 1989) for short hereinafter referred to as the Act.
( 2 ) LEARNED counsels on both sides, who include Sarvashri H. S. Oberai, Joshi, and Tiwari for the applicants seeking bail and Shri Khan for the Department of Narcotics and Shri Desai, for the State have forcefully presented their view points. Both agree and rightly so, at this stage, that the factual allegations as made, cannot be disputed; yet Shri Oberai maintained that such procedural lapses on the part of the investigating agency, which would ultimately be materially affecting the prosecution case, would be one such circumstance, which should be taken into consideration by the Court, while reaching the satisfaction that there are reasonable grounds for believing that accused is not guilty of the offence charged or levelled against him.
( 3 ) SHRI Joshi advanced yet another argument, a charge-sheet filed by the officers of the Narcotics Deptt. being a complaint, the allegations made therein, are yet to be inquired into for deciding whether or not there is sufficient ground for proceeding ? Thus relegating the case to the stage of inquiry u/s. 202 Cr. P. C. This argument is based on want of proper and required notifications u/s. 53 of the Act.
( 4 ) SHRI Khan, has placed the Notification date 4-2-1988 to counter the argument advanced by Shri Joshi, Shri Tiwari who appears for one of the applicants, has also taken the same stand as Shri Oberai.
( 5 ) THE controversy associated with these petitions, as emphatically and briskly argued by Shri Oberai, is not merely legal in nature but a constitutional as well. A significant departure has been made from the age old, time honoured cardinal rule of criminal jurisprudence of an offence is preserved to be innocent unless he is found to be guilty by a competent court.
( 6 ) SHRI Khan, for the Deptt. and Shri Desai, for the State, joining him, have urged that the law has enacted to preserve the society and the social well being order. It is primarily concerned with deferring crime not with finely adjusting individual rights when it comes to general good. They also incidently referred to the object amendment to Sec. 37 of the Act.
( 7 ) I, first think proper to deal with the provision of law, as it stands, on its plain reading and see, if it is necessary at all to go into the wider issues as raised by the learned counsels.
( 8 ) SEC. 37 of the Act reads as follows :-"offences to be cognizable : Notwithstanding anything contained in the code of criminal Procedure, 1973 (2 of 1974) (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 he is not guilty of such offence and that he is not likely to commit any offence while on bail. " (2) The limitations on granting of bail specified in clause (b) of Sub-Sec. (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. "
( 9 ) THE question of one of approach to this Section; which not only concerns but also affects personal liberty of a citizen. It is well settled by now that a provision which curtails personal liberty should be most strictly construed in favour of the subject and the safeguards provided for protection of citizen's liberty must be liberally interpreted and applied, with emphasis on their strict compliance.
( 10 ) SEC. 37 of the Act c
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