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CASE NO.:

Appeal (crl.) 1223 of 2007

PETITIONER:

Union of India

RESPONDENT:

Shri Shiv Shanker Kesari

DATE OF JUDGMENT: 14/09/2007

BENCH:

Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1223 OF 2007

(Arising out of SLP (Crl.) No. 5621 of 2005)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the grant of bail by a

learned Single Judge of the Allahabad High Court to the

respondent who was charged for alleged commission of

offence punishable under Sections 8, 15, 27A and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (in

short the ’Act’). Allegation was that he was found to be in

possession of huge quantity of poppy straw. It is the case of

the prosecution that the raiding party seized nearly 400 Kg. of

poppy straw from the possession of the accused-respondent.

The prayer for bail made by the respondent was rejected by

learned Special Judge (NDPS Act), Varanasi. The High Court

by the impugned order accepted the prayer for bail on the

ground that the recovery was not from the exclusive

possession of the accused-respondent and other members of

the family are involved in the case. It was noted that the

respondent had no criminal history. Accordingly, the prayer

for grant of bail was allowed.

3. According to learned counsel for the appellant the

parameters of Section 37 of the Act have not been kept in view

while accepting the prayer for grant of bail. It was pointed out

that huge quantity of poppy straw was recovered from the

possession of the respondent from house No.K.63/121, Gola

Deena Nath, Varanasi. It is submitted that the prayer for bail

was rejected by the District Judge in terms of Section 37 of the

Act after elaborately dealing with the background facts. Bail

can only be granted on fulfillment of two conditions i.e. (i)

where there are reasonable grounds for believing that the

accused is not guilty of the offence and (ii) that he is not likely

to commit any offence while on bail. Learned Single Judge

while accepting the prayer for bail has not recorded any

finding that there are reasonable grounds for believing that the

accused was not guilty. Further, no finding has been recorded

that he is not likely to commit any offence while on bail.

4. Learned counsel for the respondent on the other hand

submitted that the prosecution has failed to establish

exclusive possession and the applicant-respondent had no

criminal history. Therefore, it was submitted that the order of

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the High Court does not suffer from any infirmity.

5. Section 37 of the Act reads as follows:

"Offences to be cognizable and non-bailable-

(1) 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-section (1) are in

addition to the limitations under the Code of

Criminal Procedure, 1973 (2 of 1974) or any

other law for the time being in force on

granting of bail".

6. As the provision itself provides no person shall be

granted bail unless the two conditions are satisfied. They are;

the satisfaction of the Court that there are reasonable grounds

for believing that the accused is not guilty and that he is