Ghulam Mohi-ud-din & Ors. vs State of J & K

This is an application for grant of bail to the petitioners. The alleged offences are punishable under sections 8 of 20 of the Narcotic Drugs and

Psychotropic Substances Act 1985 (hereinafter referred to as 'the Act').

In nutshell the case of the prosecution is that on an information received by the Police Station Bakshinagar, Jammu on 741993 to the effect that the

accused the petitioners herein are engaged in Narcotic trade and have huge stocks of Charas in their possessions, the S.H.O. Police Station

Bakshi Nagar, Jammu, on the disclosure of the accused persons seized 2 kgs and 8 gms. of Charas from the possession of the accused Ghulam

Mohiuddin, 7 kgs. of Charas from accused Roshan and 6 kgs. and 200 gms. from the accused Farman AH, On seizure of the Charas, the accused

persons were arrested and a case came to be registered under FIR No. 128 of 1993 for offences punishable under sections 20/27 of the Act. In

pursuance of the registration of the case and on completion of the investigation, the accused were challaned in the court of learned District &

Sessions Judge Jammu, as a Special Judge, and on trial they have been charged for the offences under Sections 8/20 of the Act on 14.5.1993 and

are facing trial there.

An application for bail was moved before the learned trial Judge, who vide his order dt. 14.5.1993 rejected the same.

The petitioner, against the aforesaid accusation, have in the present application contended :

(i) that they are innocent of the guilt accused;

(ii) that the recoveries have been effected on the alleged disclosures of the accused, which are not in accordance with law;

(iii) that the Charas has not been seized from the possession of the accused and the premises wherefrom the Charas is alleged to have been seized

from the possession of the accused, is not occupied by them.

Objections to this application were filed by the respondentState and the bail application is controverted on the ground that recoveries have been

effected upon the seizure memos on the disclosure statement of the accused persons; that the petitioners do not deserve any concession"" of bail,

for the fact that they have committed heinous offences and no cogent grounds have been put forth on which they can be granted bail.

Heard learned counsel for the parties; also bestowed my thought ful consideration over the record on the file.

Mr. M.S. Bhat, learned counsel appearing for the petitioners urged that all the accused persons are innocent and they have roots in the society and

if released on bail they will abide by whatever terms the Court imposes upon them. They will also undertake not to temper with the prosecution

witnesses.

Mr. R.C. Gandhi, AAG, appearing for the RespondentState, submits that the petitioners are not entitled to bail, because the offences are Very

serious in nature. He submits that it should not be forgotten that in a murder case the accused commits murder of one or two persons, but the

persons who are dealing with the smuggling of Charas or any intoxicating substance, are playing with the lives of numberless people. These types of

offences effect the society at large. The law should not be so much impotent, if it does not help the society. In this regard reliance was placed by

Mr. Gandhi on Narcotics Control Bureau vs Kishan Lal, 1991 Criminal Law Journal 654 : (AIR 1991 SC 558). Having regard to the

observations made by the Hon'ble Supreme Court in the above case law it is manifestedly clear that when there is a special enactment in force

relating to the manner of investigation, enquiry or otherwise dealing with such offences with which the accused are being tried, the other powers

under the Code of Criminal Procedure should be subject to such special enactment. In interpreting the scope of such a Statute the dominant

purpose underlying the Statute has to be borne in mind.

In Lt. Col. Prithi Pal Singh Bedi etc. vs Union of India AIR 1982 SC 1413, regarding the mode of interpretation the Supreme Court has observed

as follows:

The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised cannons of construction is that

the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provisions, the Court should

adopt literal construction if it does not lead to an absurdity.

Section 37 of the Act starts with a nonobstants clause stating that notwithstanding any thing contained in the Code of Criminal Procedure, 1973,

no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the

power to grant bail under any of the provisions of Cr. P.C. should necessarily be subject to the conditions mentioned in S. 37 of the NDPS Act.

The NDPS Act is a special Act and in view of the above Supreme Court ruling, while adopting the liberal construction of the Act, it is found that

the Act has been enacted with a view to make stringent provisions for the control and regulation of the operations relating to the Narcotic Drugs

and Psychotropic substances. That being the underlying object of the Act, Sec. 37 of the Act, in negative terms limits the scope of the applicability

of the provisions of the Criminal Procedure Code regarding bail and, in my opinion, it cannot be held that the High Court's power to grant bail

under Section 498 Cr. P.C. are not subject to the limitations mentioned under Section 37 of the Act. The nonabstantity clause with which the

Section starts is to be given its due meaning and it clearly intends to restrict the powers to grant bail.

However, subsection (3) of Section 36A of the Act does not effect the special powers of the High Court regarding the bail under Section 439 of

the Cr. P.C. 1973 (corresponding to Section 498 of the State Criminal Procedure Code), and the High Court may exercise such power including

the power under subsection (h) of Subsection (1) of that Section, as if the reference to a Magistrate in that Section also included a reference to a

Special Judge constituted under Section 136 of the Act.

Thus it emanates that the powers of the High Court under Section 498 Criminal Procedure Code with regard to bail, are exercisable like other

eases under any penal law, but subject to the restrictions contained under Section 37 of the NDPS Act.

As a matter of above interpretation this Court accepts the contention advanced by the learned counsel for the accused/petitioners that the Act

being a Special Act, must prevail in respect of the jurisdiction and the power of the High Court to entertain an application for bail under Section

498 Cr. P.C.

After going through the record on the file and hearing learned counsel for the parties, it is proper to see as to whether the prosecution has made out

a case so as to deny bail to the petitioners at this stage.

To appreciate this it is proper to advert to some of the provisions of the Act, which deal with the condition of the investigation and seizure of the

Narcotic Drugs and Psychotropic substances from the possession of the accused/petitioners.

From perusal of the file it is found that the provisions of sections 42 and 50 of the NDPS Act, which are mandatory and the violation of which

could be held to cause prejudice to the accused, appears to have not been complied with by the Investigating Authorities. So far as compliance of

section 50 of the Act is concerned, the Police Officer or the other concerned authorities, are bound to inform the accused of his right to have

himself searched before a Magistrate or any other officer mentioned in the Section. The prosecution may show at the stage of the trial or even

earlier that no prejudice has been caused to the accused for the recovery cannot be aid to be doubtful.

The argument of the learned counsel for the respondent State that the accused did not ask for their right of being searched before a Magistrate or a

Gazetted Officer, shows that no prejudice has been caused to them, while the Charas was recovered from their possession. The simple language of

Sec, 50 of the Act envisages that it is the Police Officer who has to inform the accused of his right of being searched before a Magistrate or a

Gazetted Officer and it cannot be a defence that the accused did not ask for it.

It may be that during the trial the prosecution may be able to show that notwithstanding the compliance of this provision there was no prejudice

caused to the accused, but it may also be that the prosecution may fail in this attempt. Untill the prosecution is able to show that no prejudice has

been caused the must be accused found entitled to take benefit of this failure to comply with this provision and be held entitled to bail on that count.

All along the provisions of the Statute are to be .interpreted, inter alia, with reference to the intention of the Legislature and the Legislature always

would intend to ensure just and fair action. Most of the people in India are not literate and there are very few to understand their legal rights and

duties or the provisions of low muchless of law, muchless the provision of Special law like the NDPS Act. It would not be therefore just and

proper to held that the accused in these type of cases must necessarily be deemed to know their rights as envisaged under Section 50 of the Act.

This view is taken in Smt. Menike Gandhi's case reported in AIR 1978 SC 597.

On perusal of the record on the file, nowhere it is found that the Charas which has been seized on the alleged disclosure of the accused, has been

recovered from the exclusive possession of the accused persons and from the premises mentioned in the disclosure statements. It is difficult at the

moment to lay down as to what circumstances were there for holding the recovery to be genuine or displacing the prima facie presumption of

prejudice That will depend on the facts of each case, which will be set out before the trial Judge and proved on evidence by the prosecution.

This Court, from the material made available, has come to the conclusion that 'there are reasonable grounds for believing that the petitioners are not

guilty of the offences alleged. There is no explanation in the complaint or from the statements of other witnesses. There is also no explanation in the

complaint nor any evidence has come forth so far from the statements of prosecution witnesses, whether the homes raided by the police concerned

on the date in question, was occupied only by the accused or some other people were also living in those houses. When the prosecution says that

the Charas was seized from the premises occupied by the accused, it could also be explained as to who were in possession of the Charas.

Whether it were the accused or some other people staying in the house. Since all the questions are doubtful in nature and its correctness and

veracity can be ascertained only when regular evidence is led, I think this Court can hold, at this state, that the prosecution has not made out a fully

established case so as to canned the accused for having possessed the Charas, seized by the police concerned no 7.4.1993.

It may be noted here that at the stage of bail the material considerations are not necessary the same as may be at the time of trial. Different tests

may have to be applied at the stage of bail for two important reasons. Firstly, at the stage of bail, the accused has no opportunity to crossexamine

the witnesses or to establish prejudice/ which he can hope to establish at the stage of trial. Secondly, the mandatory provisions would be attracted

right from the inception of the investigation, subject, of course, to their detailed consideration at the stage of trial. As already noted, the prosecution

may also be able to establish during the trial that, notwithstanding the noncompliance of the mandatory provisions, no prejudice has, in fact, been

caused to the accused and that the evidence indicates that he is guilty of the offences.

The second argument of the learned Addl. Advocate General that if released on bail, the accused/petitioners may commit any offence during such

bail period. In this regard assurance given by the petitioners is that they would not temper the prosecution evidence and would not commit any

offence. Apart from it, if stringent conditions are imposed the chances of the petitioners making attempt to temper with the evidence would be

avoided. In case the prosecution even after that feels that the petitioners during the bail period have once again committed any offence or are

involved in the same kind of activity, or in any manner, have tempered with the prosecution evidence, that would be a good ground for the

prosecution to seek cancellation or modification of the bail granted to the accused/petitioners.

Hence, it is a fit case where the petitioners, in my view, are entitled to bail.

The application is, therefore, allowed and the petitioners are ordered to be released on bail, on their furnishing bail bonds for an amount of Rs.

30,000/each, with two sureties in the like amount, subject to the satisfaction of District & Sessions Judge, Jammu.

The petitioners shall furnish an undertaking that they will never leave the jurisdiction of the District and Sessions Judge at Jammu, during the trial of

the case, untill in writing permitted to do so by the trial Judge. The petitioners should not, in any manner, develop any report with any of the

prosecution witnesses or try to temper with them.

In case any of the aforesaid/conditions is violated, the prosecution shall be at liberty to seek for the cancellation of the bail granted to the

petitioners.

The application is disposed of accordingly.