1999 JTR(SC) 949
1999 3 AICLR 727 ; 1999 2 ALD(Cri)(SC) 508 ; 1999 39 AllCriC 643 ; 1999 4 Crimes(SC) 134 ; 1999 2 EastCrC(SC) 295 ; 1999 2 GLH 792 ; 1999 6 JT 397 ; 1999 4 RCR(Cri) 93 ; 1999 5 Scale 276 ; 1999 9 SCC 429 ; 1999 SCC(Cri) 1522 ; 1999 Supp2 SCR 76 ; 1999 2 UJ 1510 ; 1999 KHC 1542 ; 1999 2 KLT(Online) 901 ; 1999 7 Supreme 578
1999(7) Supreme 578
Supreme Court of India
(From Allahabad High Court)
K.T. Thomas & M.B. Shah, JJ.
Union of India -Appellant
versus
Ram Samujh & Anr. -Respondents
Criminal Appeal No. 866 of 1999
(Arising out of SLP (Crl.) No. 704 of 1999)
Decided on 30-8-1999
Counsel for the Parties :
For the Appellant : Anoop Chaudhary, Sr. Advocate, (A.S. Rawat) Advocate for D.S. Mehta, Advocate.
For the Respondents : KIB. Hina, Advocate (A.C.).
Important Point
In case of offences under the NDPS Act the jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed.
Act
Referred
:CIVIL PROCEDURE CODE : S.437, S.439
CRIMINAL PROCEDURE CODE : S.437, S.439
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.8, S.37, S.18
(A) The appeal pertains to the grant of bail in a narcotics case under the Narcotic Drugs and Psychotropic Substances Act, 1985 read with the Code of Criminal Procedure, 1973. Section 8 and Section 18 of the NDPS Act define the cognizability and nonbailable nature of offences, while Section 37 of the NDPS Act expressly mandates that no person accused of an offence punishable with imprisonment for five years or more shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit an offence while on bail. Section 437 of the CrPC and Section 439 of the CrPC govern general bail jurisdiction, but the stricter provisions of Section 37 of the NDPS Act prevail. The High Court, while exercising power under Section 439 of the CrPC, is bound to comply with the mandatory conditions in Section 37 of the NDPS Act.
(B) The core legal principles are that offences under the NDPS Act are cognizable and nonbailable; bail can only be granted if the Public Prosecutor is heard and the court is satisfied on the twin grounds of innocence and nonlikelihood of committing further offences; and the special objectives of the NDPS Act relating to societal protection and deterrence override ordinary bail principles.
Facts of the case:
On 21st May, 1997, a raid conducted by the Narcotic Department at the tubewell house of the accused recovered 5 kg of opium. The Sessions Judge, after hearing the Special Public Prosecutor, rejected the bail application on 11th July, 1997. The High Court of Judicature at Allahabad, Lucknow Bench, passed an order dated 20th August, 1998 granting bail under Sections 8 and 18 of the NDPS Act on personal bond and sureties, without recording reasons based on the requirements of Section 37 of the NDPS Act.
Findings of Court:
The High Court erred in not applying the provisions of Section 37 of the NDPS Act while granting bail. The legislature has imposed mandatory conditions that must be adhered to, particularly in narcotics cases, given the harmful impact on society. The court must ensure reasonable grounds for believing the accused is not guilty and that he is not likely to commit an offence while on bail, and must give the Public Prosecutor an opportunity to oppose bail.
Issues:
Whether the High Court could grant bail in a case triable under the NDPS Act without applying the conditions precedent contained in Section 37 of the NDPS Act.
Ratio Decidendi:
Where an offence is punishable under the NDPS Act with imprisonment for five years or more, the stricter provisions of Section 37 of the NDPS Act govern over general bail provisions and must be complied with. Bail may only be granted if the Public Prosecutor is heard and the court is satisfied on the merits laid down in Section 37; the High Court failed to do so, rendering its order unsustainable.
Result:
The appeal is allowed. The impugned order dated 20th August, 1998 is quashed and set aside, and the accused is directed to surrender.
(A) The appeal pertains to the grant of bail in a narcotics case under the Narcotic Drugs and Psychotropic Substances Act, 1985 read with the Code of Criminal Procedure, 1973. Section 8 and Section 18 of the NDPS Act define the cognizability and nonbailable nature of offences, while Section 37 of the NDPS Act expressly mandates that no person accused of an offence punishable with imprisonment for five years or more shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to commit an offence while on bail. Section 437 of the CrPC and Section 439 of the CrPC govern general bail jurisdiction, but the stricter provisions of Section 37 of the NDPS Act prevail. The High Court, while exercising power under Section 439 of the CrPC, is bound to comply with the mandatory conditions in Section 37 of the NDPS Act.
(B) The core legal principles are that offences under the NDPS Act are cognizable and nonbailable; bail can only be granted if the Public Prosecutor is heard and the court is satisfied on the twin grounds of innocence and nonlikelihood of committing further offences; and the special objectives of the NDPS Act relating to societal protection and deterrence override ordinary bail principles.
Facts of the case:
On 21st May, 1997, a raid conducted by the Narcotic Department at the tubewell house of the accused recovered 5 kg of opium. The Sessions Judge, after hearing the Special Public Prosecutor, rejected the bail application on 11th July, 1997. The High Court of Judicature at Allahabad, Lucknow Bench, passed an order dated 20th August, 1998 granting bail under Sections 8 and 18 of the NDPS Act on personal bond and sureties, without recording reasons based on the requirements of Section 37 of the NDPS Act.
Findings of Court:
The High Court erred in not applying the provisions of Section 37 of the NDPS Act while granting bail. The legislature has imposed mandatory conditions that must be adhered to, particularly in narcotics cases, given the harmful impact on society. The court must ensure reasonable grounds for believing the accused is not guilty and that he is not likely to commit an offence while on bail, and must give the Public Prosecutor an opportunity to oppose bail.
Issues:
Whether the High Court could grant bail in a case triable under the NDPS Act without applying the conditions precedent contained in Section 37 of the NDPS Act.
Ratio Decidendi:
Where an offence is punishable under the NDPS Act with imprisonment for five years or more, the stricter provisions of Section 37 of the NDPS Act govern over general bail provisions and must be complied with. Bail may only be granted if the Public Prosecutor is heard and the court is satisfied on the merits laid down in Section 37; the High Court failed to do so, rendering its order unsustainable.
Result:
The appeal is allowed. The impugned order dated 20th August, 1998 is quashed and set aside, and the accused is directed to surrender.
Judgment
Shah, J.-Leave granted.
2. As respondent No. 1 has not engaged any counsel, the Registry was directed to appoint an advocate as amicus curiae. We have heard the learned counsel for the parties. Only question involved in this appeal is whether the order passed by the High Court of Judicature at Allahabad, Lucknow Bench, granting bail to the respondent No. 1 Ram Samujh Yadav requires to be set aside on the ground that the High Court ignored the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”) as well as the law laid down by this Court.
3. It is alleged by the prosecution that on 21st May, 1997, a raid by the authorities of the Narcotic Department was carried out at the tubewell house of Respondent No. 1 and 5 Kg. of Opium was recovered. The Sessions Judge by the detail reasoned order dated 11th July, 1997 rejected the bail application after hearing Special Public Prosecutor (Narcotics) and considering the material on record.
4. The High Court granted bail by a cryptic order dated 20th August, 1998 which is extracted below :-
“The applicant is in jail since 22.5.1997 and trial has not concluded.
Applicant Ram Samujh is admitted to bail in case crime No. 15 of 97, under Sections 8/18 N.D.P.S. Act, P.S. Kotwali, Barabanki, district Barabanki, on his furnishing a personal bond and two sureties, each in the like amount to the satisfaction of Special Judge (N.D.P.S. Act), Barabanki and on the condition that the applicant shall report at the Police Station first and sixteenth of every month till the trial lasts.”
5. The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of the NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus :
“37. 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, on granting bail.”
The aforesaid Section is incorporated to achieve the object as mentioned in the Statements of Objects and Reasons for introducing the Bill No. 125/1988 thus :
“Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt.”
6. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secretary, Union Territory of Goa1 as under :-
“With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.”
7. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that accused is not guilty of such offence; and
(ii) that he is not likely to commit while on bail
are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended.
8. In the result, appeal is allowed. The impugned Order dated 20th August, 1998 passed by the High Court of Judicature at Allahabad, Lucknow Bench, releasing the respondent No. 1, Ram Samujh is quashed and set aside. Respondent No. 1 is directed to surrender.
(C.R.) Appeal allowed.
************