Dayanand vs State of Haryana

S.S. Rathor, J.

In this partition under section 439 of the Criminal Procedure Code, the petitioner has sought his release on bail during the pendency of trial in a case with the allegations against him that on December 11, 1991, Shri Jagdish Nagar, S.H.O. Police Station Sadar Rohtak alongwith other police officials was on patrol duty and saw the petitioner getting down from a truck. On suspicion, petitioner was apprehended and on his search, 100 grams of Charas wrapped in a polythene paper was recovered. As the petitioner could not produce any licence for keeping the said contraband, a sample weighing 10 grams was prepared and taken into possession alongwith the remaining material.

The petitioner has emphatically denied the allegations of the prosecution. In addition, it is contended that a perusal of the F.I.R. does not show that the petitioner was given the option of being produced and searched in the presence of a gazetted Officer. Though the police party was on patrol duty for detecting commission of crime in the area, yet no independent witness from the general public was joined in the said patrolling operation. Further, it does not find mention in the First Information Report that any reasons were recorded and conveyed to the petitioner in terms of Section 50 (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the `Act'').

Bail has been declined to the petitioner by the trial Court primarily on the ground that he is not entitled to bail in view of Section 37 of the Act, as so observed by the Supreme Court in a case reported as Narcotics Control Bureau v. Kishan Lal and others, 1991 Supreme Court Cases (Crl.) 265. Feeling aggrieved against the order of the trial Court, the petitioner approached this Court for concession of bail during the pendency of trial in terms in Section 439 Cr.P.C. and Section 37 of the Narcotic Act.

A few Courts in the country have almost adopted negative approach to the grant of bail in view of Section 37 of the Act, presumably under the impression that the said provisions are complete bar to the grant of bail. In fact, it is not so, as so clearly laid down by the Supreme Court in its aforesaid decision rendered in Kishan Lal''s case (supra). On perusal of the observations in the said judgement, it is apparent that this Court has every power to grant bail in terms of Section 439 of the Code but the said powers are controlled and regulated by Section 37 of the Act and facts of each case are to be appreciated in the light of the limitations imposed therein.

It is worth mentioning that while delivering judgment in Kishan Lal''s case (supra), the Supreme Court had placed reliance and extended full approval to the ratio of its previous judgment rendered in Usmanbhai Dawoodbhai Memon and others v. State of Gujarat, 1988(1) R.C.R.(Criminal) 540 : A.I.R. 1988 SC 922, wherein it was held that in view of Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985, the High Court has no jurisdiction to entertain an application for bail under Section 439 Cr.P.C. read with Section 29 (8) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the `TADA''). Section 20 (8) of the TADA and Section 37 of the NDPS Act are identical in nature. However, while interpreting the scope of Section 439 Cr.P.C. as limited by Section 20 (8) of the TADA, the Hon''ble Supreme Court observed as under in Usmanbhai''s case (supra) :

"23. That takes us to the approach which a designated Court has to adopt while granting bail in view of the limitations placed on such power under section 20 (8). The subsection in terms places fetters on the power of a Designated Court on grating of bail and the limitations specified therein are in addition to the limitations under the Code. Under Section 20 (8) no person accused of an offence punishable under the Act or rule made thereunder shall, if in custody be released on bail or on his own bond unless the two conditions specified in cls. (a) and (b) are satisfied. In view of these more stringent conditions a Designated Court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. Since before granting bail the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of fact, the police report alongwith the statements in the case diary and other available materials should be closely examined. A prayer for bail ought not to be rejected in a mechanical manner."

The above observations of the Supreme Court make it clear that a Court should examine every case coming before it for finding out whether the provisions of the Act apply to the facts of the case or not. Pertinent observations were also made that before granting bail, the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail the allegations of fact, the police report alongwith the statements in the case diary and other materials have to be closely examined before recording a finding as to whether the aforesaid two conditions are fulfilled or not.

Keeping in view the provisions of section 439 of the Code, as controlled and regulated by Section 37 of the NDPS Act and while adverting to the facts of the case, it appears that some mandatory provisions of law as contained in Sections 50, 52, 53 and 57 of the Act prima facie cannot be said to have been compelled with on the basis of material placed before this Court viz. the First Information Report, recovery memo, and report under Section 173 of the Code. From this material alone, at this stage, it cannot be said with affirmance that the said provisons have been complied with during investigation by the police while collecting incriminating material against the petitioner. It is to be made clear that nothing can be said with certainty at this stage on this aspect of the matter as the same has to be proved to the satisfaction of the trial Court by leading of evidence by the prosecution. After appreciation of complete evidence recorded during the trial, one would be in a position to say as to whether the provisions have been complied with or not. Presently, the prevalent view of this Court that the provisions are mandatory in nature is held in two Division Bench judgments reported as Kuldip Singh v. Statte of Haryana, 1989 Chandigarh Criminal Cases 183 and Criminal Appeal No. 513DB of 1987 (Amrit Singh v. State of Haryana), 1990(2) R.C.R.(Criminal) 525, decided on 27.5.1989. Though the view expressed in these two judgments has been doubted and the matter has been referred to a Full Bench of this Court, yet it has not been decided so far. Under these circumstances, the law laid down by these Division Bench judgments is binding upon me while sitting singly.

Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under :

"Offencesds to be cognizable 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 acussed 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."

Mr. M.S. Yadav, Assistant Advocate General, Haryana has strongly opposed the bail saying that the petitioner is to face a charge of serious offence entailing minimum sentence of rigorous imprisonment for ten years and a fine of Rs. one lac, which may go upto 20 years R. I and fine of Rs. 2 lacs. No doubt, the provisions of the Act are very stringent in nature and call for deterrent punishment on the proving of the offence yet, all the same, the Court would require a very credible investigation and congent evidence during the trial showing compliance of various provisions of the Act, releavant to the facts of each case. In view of this, powers of this Court Section 439 Cr.P.C. are not curtailed in any manner except that they are to be exercised with embargo and conditionalities as laid down by Section 37 of the Act. Oprdinarily, or a bare reading of these provisons, it would look as if the Court is to adopt a negative approach and to decline bail but when the Legislature have required the Court to record a finding of its satisfaction of certain facts the duty cast on the Court is in positive terms. Even otherwise, grant of bail is a rule and its rejection is an exception, also that the accused is innocent till guilt is proved. These cardinal principles of criminal law have to be born in mind while considering concession of bail. At present, as already observed above, it cannot be said that prima facie the mandatory provisions of the Act have been complied with. Till the compliance of various provisions of the Act attracted to the facts of each case is proved by the prosecution during the trial, this Court can safely observe that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged against him.

It is relevant to mention here that diferent contraband articles have been defined in Section 2 and offence in relation to each of them have been made punishable under different Sections of the Act. This shows that law makers were conscious of the fact that gravity and punishment would vary from nature and quantity of the contraband and that is why discretion has been kept wide open to the Court to impose sentence varying from ten years to twenty years rigorous imprisonment and fine from Rs. one lac to two lacs and in some cases, death penaltly also. As such, the nature and quantity and the antecedents of the accused, are very re;evamt for consideration of the grant of bail in such cases and such factors shall very from case to case.

In this case, nothing has been placed on record to show that the accused is a habitual offender and a dealer in this trade. Neither any provisous conviction much less lodging of a criminal case under the Act has been brought to the notice of the Court nor is so available form the police record. Further, the counsel for the prtitioner has given an assurance that the petitioner shall not commit any such offence during the pendency of the trial or even after his conviction. In support of this assurance, it has been agreed that if released on bail, the petitioner shall furnish bond within six weeks in the trial Court with the undertaking that during the pendency of trial he shall not involve himself in any kind of offence punishable under this Act. It is directed that such bond should be prepared on the requisite stamp paper by the trial Court on petitioner''s furnishing personal and two surety bail bonds each of the value of Rs. 25,000/. This course has been adopted in consonance with the object of the Act as contained in Section 34. This section shows that the Act is not punitive but of preventtive nature also. The language of the bond is to be borrowed form Form1 as provided under the NDPS (execution of Bond by Convict and addicts) Rules, 1985, with necessary modification that the period of the Bond would be till conclusion of the trial.

In view of the undertaking given by the accused and execution of the bonds with the trial Court for non commmission of any offence under the Act during the pendency of the trial is sufficient to satisfy this Court that the accused is not likely to commit any offence while on bail. If any of the conditions is violated, this Court may be approached for proper orders.

In view of what has been stated above, let the petitioner avail the concession of bail during the pendency of trial against him on his furnishing personal and two surety bail bonds each of the amount of Rs. 25, 000/ to the satisfaction of Chief Judicial Magistrate, Rohtak.

JUDGMENT accordingly