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IN THE HIGH COURT OF MANIPUR AT IMPHAL
N.Kotiswar Singh, J.
State of Manipur and Ors. - Appellant
Versus
Saroz Khan and Ors. - Resopndent
Cril. Revn. Petn. Nos. 19 and 20 of 2014
Decided On : 27-07-2015
NDPS ACT - BAIL - CONDITIONS - SECTION 37 - INTERPRETATION - COURT'S DISCRETION - CANCELLATION OF BAIL - GROUNDS - SECTION 439(2) CR.P.C. - APPLICABILITY - DISTINCTION BETWEEN SECTION 37 NDPS ACT AND SECTION 437 CR.P.C. - BURDEN OF PROOF - REASONABLE GROUNDS FOR BELIEVING ACCUSED NOT GUILTY - STRINGENT REQUIREMENTS - COURT'S DUTY TO SCRUTINIZE RECORDS - NON-APPLICATION OF MIND - PERVERSE ORDERS - CANCELLATION OF BAIL - SUCCESSIVE BAIL APPLICATIONS - CHANGE IN CIRCUMSTANCES - JURISDICTION OF IN-CHARGE JUDGE - REVIEW OF EARLIER ORDER - ILLEGALITY - CANCELLATION OF BAIL.
Fact of the Case:
The respondents were arrested on 27.4.2014 by the Narcotics Bureau Police Station (NAB-P.S.) led by the complainant/Sub-Inspector, Th. Achouba Singh. At the time of arrest, the respondents and three others were travelling in a tata truck from which 2.480 kgs. of powder suspected to be brown sugar were recovered. The said powder was shown to be seized from the possession of Md. Firoz Khan @ Thoiba, another accused. The police also seized Indian currency notes amounting to Rs. 1,00,000/- along with one mobile handset (Lemon) with SIM card (Airtel No. 8974196574) from the possession of Md. Saroz Khan, the respondent in Cril. Revn. Petn. No. 19 of 2014 and a sum of Rs. 50,000/- along with one mobile handset (Nokia) with SIM card (Aircell No. 8794180120) from the possession of the respondent in Cril. Revn. Petn. No. 20 of 2014. Subsequently, FIR case No. 31(4) 2014 NAB PS u/s. 21(c)/29/60(3) of the ND& PS Act was registered against them. They were produced before the learned CJM, Imphal East on 28.4.2014 who remanded them to police custody till 5.5.2014 and were directed to be produced before the Special Court (ND&PS) on 5.5.2014. Subsequently, they were produced on 5.5.2014 before the Special Court (ND&PS) for further remand on which date, one of the accused, namely, Nongthombam Bishworjit Singh @ Lumba was released on bail by the Special Court and the remaining 4 accused including the present respondents were remanded to police custody. On the day of remand on 5.5.2014, the learned Special Judge, who also happened to be same Judge who passed the impugned bail orders, observed that examination of materials on record collected and found out by the investigation, prima-facie show a conspiracy amongst the 4 accused persons for commission of the offence. Accordingly, they were further remanded to custody. Thereafter, these two respondents filed a joint application being Cril.Misc. (B) No. 83 of 2014 under section 37 of the ND & PS Act read with Section 439 Cr.P.C. for release on bail, which, however, was rejected by the learned Special Judge vide order dated 26.7.2014. Though the respondents pleaded in their bail application that they had been arrested on mere suspicion and there is no material on the part of the prosecution to substantiate the allegations against them as no incriminating substance was recovered from either of the accused persons or at their instances, the learned Special Judge noted the submission of the learned Public Prosecutor that as per the investigation in the case, one Md. Akbar Khan, a lawyer by occupation, is said to be owner of the seized drug and the present respondents brought the said drugs for transportation to Imphal. The learned Special Judge then observed that that being the finding of the investigating agency that both the respondents are found involved in committing offences mentioned in the above referred FIR case, there are reasons to believe that they are also involved in the present case. Accordingly, their bail applications were rejected by the Ld. Special Judge vide order dated 26.7.2014. Thereafter, the respondents filed the two separate bail applications again on 6.8.2014 before the Special Court (ND & PS), Manipur. The common plea taken by the respondents in their bail applications was that while these two respondents were proceeding to Mantripukhri along with the said amount of Rs. 1,50,000/- for payment to one Md. Siraj, who is living in Mantripukhri as the price/consideration for purchasing a piece of land at Mantripukhri and while they were waiting for bus, they happened to meet one Md. Feroz Khan @ Thoiba who was proceeding in a tata truck towards Imphal who offered them a lift. Accordingly, they travelled as gratuitous passengers of the tata truck and as such, had nothing to do with the brown sugar so seized from the truck, which has been shown to be seized from the said Md. Firoz Khan @ Thoiba.
Finding of the Court:
The Court held that the impugned orders granting bail to the respondents were perverse, patently illegal and are the result of wrong exercise of discretion by the Special Judge by ignoring the mandate of law stipulated in Section 27 of the NDPS Act which need to be corrected.
Issues: 1. Whether the impugned orders granting bail to the respondents were validly passed by following the mandate of law contained in Section 27 of the NDPS Act? 2. Whether the Special Judge had applied the correct principles of law while granting bail to the respondents? 3. Whether the respondents had discharged the onus of showing that they were not guilty of the offence, inspite of the incriminating materials against them gathered by the Investigating agency?
Ratio Decidendi: 1. The Court held that the impugned orders granting bail to the respondents were perverse, patently illegal and are the result of wrong exercise of discretion by the Special Judge by ignoring the mandate of law stipulated in Section 27 of the NDPS Act which need to be corrected. 2. The Court held that the Special Judge had not applied the correct principles of law while granting bail to the respondents. The Court observed that the Special Judge had ignored the incriminating materials against the respondents, thus revealing non-application of mind. The Court also held that the Special Judge ought not to have ignored the contention, finding (though yet to be proved) of the Investigating Authority that the aforesaid amounts were handed over to the respondents by owner of the drugs and the respondents were in touch with the owner of the drugs who were instructed to meet at Imphal, clearly indicating that the respondents were also involved. 3. The Court held that the respondents had not discharged the onus of showing that they were not guilty of the offence, inspite of the incriminating materials against them gathered by the Investigating agency.
Final Decision: The Court allowed the revision petitions, set aside the impugned orders dated 3.9.2014 passed in Cril. Misc. (B) No. 97 of 2014 and Cril. Misc. (B) No. 98 of 2014 in connection with FIR No. 31(4)2014 NAB PS u/s. 21(c)/29/60(3) of the ND & PS Act enlarging the respondents on bail and cancelled their bail. The Court also directed the respondents to surrender to custody within 7 (seven) days from the date of the order, failing which the Special Court was directed to take appropriate steps for their arrest and committing them to judicial custody.
N. Kotiswar Singh, J.
1. Heard Mr. R.S. Reisang, learned senior PP for the State and Mr. N. Mahendra, learned counsel for the respondents in these two revision petitions.
2. These two revision petitions have been filed by the State being aggrieved by the orders dated 3.9.2014 passed by the Special Court (ND & PS), Manipur at Lamphelpat in Cril. Misc.(B) No. 97 of 2014 and in Cril. Misc. (B) No. 98 of 2014 by which the respondents were granted bail.
These revision petitions are heard together as these arise from the identical impugned orders dated 3.9.2014 relating to the same cause of action and FIR, and disposed of by this common judgment.
3. Before we proceed to examine the correctness of the order releasing the respondents on bail by the learned Special Judge, this Court would like to deal with the preliminary objection raised by the respondents that the present revision petitions preferred by the State are not maintainable. It has been submitted by Mr. Mahendra, learned counsel for the respondents that these revision petitions were filed by the State under Section 397 read with Sec. 439(2) and 401 of Cr.P.C. for setting aside or quashing the orders dated 3.9.2014 passed by the Special Court (ND & PS), Manipur. According to Mr. Mahendra, learned counsel for the respondents, since an order granting bail amounts to an interlocutory order, no revision would lie against an interlocutory order under Section 397 Cr.P.C. As regards Section 439(2)Cr.P.C., it has been submitted that Section 439(2) could be invoked for cancellation of bail which could be only on the limited grounds when the accused has been found to be tampering with the evidence or that he has committed similar offence during the period of bail or has absconded and such alike misconduct or emergence of new grounds warranting cancellation of bail. It has been submitted that since no such grounds have been raised in these revision petitions and as these petitions, filed under Section 439 Cr.P.C. for cancellation of bail granted by the Court below, are not maintainable. It has been also submitted that the High Court's power of revision u/s. 401 Cr.PC is limited and can not be invoked to challenge the order granting bail. It has been submitted that if the State Government is really aggrieved by the orders granting bail to the respondents on 3.9.2014, they could have invoked the provisions of Section 482 Cr.P.C. for exercise of the inherent power of the High Court. In this regard, Mr. Mahendra, learned counsel for the respondents has relied on the decision of the Hon'ble Supreme Court in Puran v. Rambilas, (2001) 6 SCC 338, State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 contending that revision would not lie against an order granting bail and the only option for the State is to approach the Special Court for cancellation of the bail order, as the High Court can not sit in appeal or revision over an order of the Court of Session.
Mr. Mahendra, learned counsel for the respondents has also relied on a number of decisions of Hon'ble Supreme Court to show that the present applications filed by the State are in effect for cancellation of the bail orders passed by the learned Special Judge on 3.9.2014 but without pleading the permissible grounds for cancellation. In this regard, Mr. Mahendra has drawn attention of this Court to the decisions of the Hon'ble Supreme Court i.e., 1) Dolat Ram & ors. v. State of Haryana, (1995) 1 SCC 349; 2) the State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961; 3) Sami Ullaha v. Superintendent, Narcotic Central Bureau, (2008) 16 SCC 471; 4) Samarendra Nath Bhattacharjee v. State of W.B. & anr., (2004) 11 SCC 165; 5) State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21 and has submitted that the order of bail should be sparingly interfered with and that also only on the limited grounds that the accused respondents have misused their bail as explained in detail in the aforesaid cases.
Further, relying on the d
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