Madan Mohan Bhanja Deo vs Union of India (UOI)

P.K. Tripathy, J.—This relates to an application for hail prayed u/s 439 of the Code of Criminal Procedure, 1973 (in short ''the Code''). Keeping in view the fact that petitioner is involved for an offence u/s 20(b)(i) and Section 21 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (in short, ''the Act'') the bail application has to be read as an application u/s 439 of the Code read with Section 37(1) of the Act.

Charge for the aforesaid offences has been framed against the petitioner on 5-2-1998 on the allegation that he was found in possession of 15 gms. of Ganja preparation (canabis) and that he was also found in unlawful possession of manufactured drugs (Modaks) and preparation thereof.

Main thrust of the contention of Mr. Manoj Mishra, learned counsel for the petitioner is that in view of the ratio in the case of Gunanidhi Chand v. State of Orissa (1997) 13 OCR 331, maximum punishment prescribed for the offence u/s 20(b)(i) of the Act being five years restriction prescribed in Section 37(1) of the Act relating to bail is not applicable to such a case. His further contention is that in view of the ratio in the cases of Durga Prasad Mohanty v. State of Orissa (1991) 4 OCR 216 and Nanda Parida v. State of Orissa57 (1984) CLT 448, the confessional statement of the co-accused cannot be regarded as establishing a prima facie case and in such case prayer for bail should be allowed. Mr. H. K. Jena, learned Sr. Standing Counsel (Central) disputing the aforesaid contention argued that there exists a prima facie case and in view of the restriction imposed u/s 37(1), prayer for bail should not be entertained. He added that petitioner having also been charged for the offence u/s 21 of the Act where minimum punishment prescribed is 10 years, the aforesaid contention of Mr. Mishra is not acceptable.

In the case of Gunanidhi Chand (supra) this Court considered the question that in view of the punishment prescribed u/s 20(b)(i) of the Act, whether the restriction imposed u/s 37(1) of the Act is applicable to that offence. In that context, it took note of the cases of Bimbadhar Behera Vs. State of Orissa, ,Soodha Somana v. State (1991) 4 OCR 437, State v. Surendranath (1990) 3 OCR 462 and held that :-

The importance of the language 5 years or more in the context has expressly not been answered

But referring to and relying upon the decision in the cases of Kamlesh Kumar v. State of Bihar 1994 (3) Crimes 671 and A.V. Dharma Singh v. State of Karnataka 1993 Cri LJ 94 it was held that:-

I am, therefore, of the considered view that Section 37(1)(b) is applicable only in case the offence is punishable with minimum sentence of 5 years and therefore for an alleged offence u/s 20(b)(i) the bar u/s 37(1)(b) is not attracted.

In the case of Balbir Singh Vs. State of Orissa, a similar contention was raised that Section 37 has no application if the offence is punishable u/s 20(b)(i) of the Act and the above noted cases of A.V. Dharma Singh (supra) and Kamlesh Kumar (supra) were relied upon. In that context, this Court held that:-

It was first contended that the alleged offence u/s 20(b) of the Act is punishable with imprisonment which may extend to five years and as such the bar u/s 37 of the Act may not be applicable. It is submitted that the bar u/s 37 of the Act may not be applicable. It is submitted that the bar u/s 37 should be made applicable to offences punishable with minimum five years of imprisonment. Inspiration for the aforesaid submission is drawn from the decision of the Karnataka High Court reported in A.V. Dharmasingh and others Vs. The State of Karnataka, and the decision of the Patna High Court reported in 1994 (3) Crimes 671 (Kamlesh Kumar v. State of Bihar). No doubt, the aforesaid two decisions support the contention of the learned counsel for the petitioner. However, the aforesaid two decisions run contrary to the decision of the Orissa High Court reported in Rajendra Panda and Another etc. Vs. State of Orissa, .

It appears that the earlier decision of this Court in the case of Rajendra Panda (supra) and Balbir Singh (supra) were not brought to the notice of the Court for which a contrary view was expressed in the said case of Gunanidhi Chand. Keeping in view the rule of precedence of precedents, the law laid down by this Court in the cases of Rajendra Panda (supra) and Balbir Singh (supra) is followed in (his case. In that view of the matter, it is held that the provision in Section 37 of the Act is applicable in case of the offence alleged u/s 20(b)(i) of the Act. Thus, the first contention of Mr. Misra fails.

In the cases of Durga Prasad Mohanty (supra) and Nanda Parida (supra) it has been consistently held by this Court that confessional statement: of the co-accused before the investigating agency being hit by the provisions u/s 162 of the Code that cannot be the basis for detention of an accused in custody. In the case of Nanda Parida (supra) this Court has further held that even if there is a prima facie case, then also bail should not be refused as a measure of punishment.

In the above context, it may be noted that the present petitioner had approached this Court to quash the cognizance and to drop the proceeding by invoking, the power u/s 482 of the Code vide Criminal Misc. Case No. 2404 of 1997. After analysis of the provision of law as well as factual aspect, this Court has recorded the finding that in addition to the confessional statement of the co-accused there are series of documents and at the time of trial if the same are proved against the petitioner then there is a good case in favour of the prosecution. In the meantime, after perusal of the materials on record, charge has already been framed. Therefore, regarding existence of a prima facie case, there need not be any further probe.

The ratio in the case of Nanda Parida (supra) that bail should not be refused as a measure of punishment is not relevant in this case in view of the provision of law u/s 37 of the Act. The Act deals with various types of offences relating to Narcotic Drugs and Psychotropic Substances where possession, sale, manufacturing etc. are regarded as not only an offence against a particular individual or a group of individual, but it is regarded as an offence against the society and humanity. Keeping in view the disastrous consequences of use and abuse of the Narcotic Drugs and Psychotropic Substances, legislator have made the offences punishable with severe punishment as well as they have made the condition relating to grant of bail very stringent. According to Section 37, every offence punishable under the Act are cognizable offences and no person, accused of an offence, punishable for a term of imprisonment for five years or more shall be released on bail or on his own bond if there exists a prima facie case and unless the Court is satisfied that if released on bail the offender/accused shall not repeat commission of same type of offences. This restriction is notwithstanding anything contained in the Code, relating to bail. The provision of law being so stringent the matter relating to bail cannot and should not be dealt with lightly and casually. Since a prima facie case is made out against the petitioner prayer for bail is rejected.

It is seen from the LCR that charge has already been framed and accused persons are in custody. Under such circumstance, learned Special Judge should take steps for expeditious hearing and disposal of the case and to conclude the same as far as practicable within a period of three months from the date of receipt of Che LCR. Prosecution must be aware that they are to take effective step to ensure the attendance of witnesses and all other relevant evidence as early as possible.