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C. L. SAHU

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CASE NO.:

Appeal (crl.) 907 of 2001

PETITIONER:

STATE OF MADHYA PRADESH

Vs.

RESPONDENT:

KAJAD

DATE OF JUDGMENT: 06/09/2001

BENCH:

M.B. Shah & R.P. Sethi.

JUDGMENT:

SETHI,J.

Leave granted.

Acting upon a definite information received by the Police

Station Jawad, District Neemuch, Madhya Pradesh, force was deployed

and the respondent-accused apprehended on the night of 24th March,

2000. After compliance of the mandatory provisions of Section 50 of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter

called "the Act"), opium weighing 7 kgs. was seized from the accused

which he had kept in his bag. After completing necessary procedural

formalities and getting the samples tested, a charge-sheet was

submitted against the accused in the competent court. Application for

bail moved by the accused was rejected by the trial court.

Dissatisfied with the rejection of his bail application, the

respondent-accused moved an application in the High Court which was

registered as Miscellaneous Criminal Case No.2052 of 2000. The said

application was rejected by the High Court vide order dated 5.6.2000.

Without mentioning any change in the circumstances, the respondent-

accused moved another application in the High Court in the month of

August, 2000 which was adjourned from time to time and ultimately

allowed vide the order impugned in this appeal.

Learned counsel appearing for the appelalnt-State has contended

that the High Court has committed an error of law by granting bail to

the respondent-accused ignoring the provisions of Section 37 of the

Act, though merely making a mention of it in the impugned order. It

is further contended that in the facts and circumstances of the case,

the High Court was not justified in granting the bail to the accused

in view of the dismissal of his earlier bail application and in the

absence of any change in the circumstances. The learned Judge

granting the bail is stated to have adopted a casual approach in

dealing with a heinous crime committed under the Act. It is submitted

that the order granting the bail amounts to reviewing the earlier

order which is not permissible in criminal cases.

It is not disputed that the accused was apprehended and charged

for the commission of an offence punishable under Section 18 of the

Act which is punishable with rigorous imprisonment for a term, not

less than 10 years but which may extend to 20 years and is also liable

to a fine of not less than one lakh rupees.

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Section 37 of the Act provides that the offences under the Act

shall be cognizable and non-bailable. It reads:

"Offences to be cognizable and non-bailable- (1)

Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 -

(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 or

any other law for the time being in force, or granting of

bail."

The purpose for which the Act was enacted and the menace of drug

trafficking which intends to curtail is evident from its scheme. A

perusal of Section 37 of the Act leaves no doubt in the mind of the

court that a person accused of an offence, punishable for a term of

imprisonment of five years or mo