Bhupinder Singh alias Bandhu vs State of Punjab

Harphul Singh Brar, J.

Bhupinder Singh alias Bandhu, petitioner has filed this petition under section 439 of the Code of Criminal Procedure, for granting him bail in case First Information Report No. 92, dated August, 19, 1991, Police Station City Hoshiarpur under sections 15/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Narcotic Act).

The petitioner was found in possession of 8 Kgs. of poppy husk. A case was, thus, registered against him under sections 15/61/85 of the Narcotic Act. The petitioner filed an application for grant of bail before the learned Additional Sessions Judge, Hoshiarpur, which was rejected by him vide order, dated August 23, 1991. Hence, this petition.

The learned counsel for the petitioner argued that the accusedpetitioner having not been taken before a Magistrate or a Gazetted Officer when the search of the petitioner was conducted, is in violation of section 50 of the Narcotic Act. A perusal of the First Information Report also shows that alleged poppy husk was first sealed into R.K. Seal and then the seal of the bag of poppy husk was broken and sample was taken. He submits that this procedure is absolutely unknown to the special procedure provided under the Narcotic Act. The learned counsel further urges that the accused petitioner being a boy of sixteen years of age, has been falsely implicated by the police. As such he may be enlarged on bail, as he is not expected to commit any offence. He has cited Amrit Singh v. The State of Harayana, 1990(1) CLR 437, Criminal Miscellaneous Nos. 12040 M of 1996, 10605M of 1991 and 10642M of 1991, decided on December 6, September 20, and September 20, 1991, respectively.

The petitioner cannot derive any benefit from the aforesaid orders, as the decision of the Supreme Court in Criminal Appeals Nos. 810811 of 1989, rendered on January 29, 1991 (Narcotics Control Bureau v. Kishan Lal and others, AIR 1991 SC 558 : 1991(1) Recent Criminal Reports 338) does not seem to have been brought to the notice of the learned Judges of this Court and the order in Criminal Miscellaneous No. 12049M of 1990 was passed before the decision of the Supreme Court was rendered in Narcotics Control Bureau''s case (supra). In this case, it has been stated in very clear terms by the Supreme Court that section 37 as amended starts with a nonobstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no parson accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The Narcotic Drugs and Psychotropic Substances Act is a special enactment and section 37 thereof restricts the powers of the High Court to grant bail except when the conditions prescribed under section 37 are fulfilled. The conditions prescribed under section 37 are as under

"37. Offences to be congnizible and nonbailable(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.

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The learned Assistant Advocate General, Punjab opposes the prayer for bail made by the learned counsel for the petitioner.

I see no ground for believing that the accusedpetitioner is not guilty of an offence under sections 15/61/85 of the Narcotic Act and that he is not likely to commit any offence while on bail.

The application is, thus, dismissed. The prayer or bail to the petitioner is declined.