Mangal Singh vs State of Punjab

S. S. Grewal, J.

Mr. K. S. Ahluwalia, learned counsel for Dhanna respondent stated at the bar that his client does not want to file any reply concerning the notice sent to him as to why bail already granted to Dhanna by the Additional Sessions Judge, Patiala, be not cancelled and on his request this application has been heard today.

In brief facts of the case are that the police party headed by SI Kuldip Singh, S.H.O. Police Station, Bhadson was holding Nakabandi and vehicle checking at the Canal bridge in the area of Kalar Majri. On 16th of August, 1993 at about 7.30 P.M. truck bearing registration No. PCL 9945 came there from the side of Bhadson. Dhanna respondent who was sitting on the left side was recognised by ASI Maghar Singh. Dhanna, however, taking the advantage of darkness was able to escape whereas his coaccused Mangal Singh who was driving the truck was taken into custody. According to the prosecution the truck was searched after complying with the formalities under the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as the Act) and 45 bags each containing 35 Kgs. of poppy husk were recovered. Additional Sessions Judge, Patiala, granted bail to Dhanna vide his order dated 26th October, 1993 without making any reference whatsoever to Section 37 of the Act.

From the perusal of the impugned order, it is clear that the learned Additional Sessions Judge, while granting bail did not even mention either that he was satisfied that there are reasonable grounds for believing that Dhanna respondent was not guilty of any offence under the Act or that he was not likely to commit any offence while on bail. It was obligatory for the learned Additional Sessions Judge to consider these mandatory provisions before granting bail. Mere observations of the learned Additional Sessions Judge, in the impugned order granting bail that the report of the Chemical Examiner was yet to be received or that petitioner is in judicial custody for more than two months or that it would be inequitable to keep the accused in jail till he is committed to the Court of Sessions for trial, or, that Kaka SinghExSarpanch and Lal Singh member Panchayat furnished affidavits to the effect that nothing was recovered from the possession of the accused and he never indulged in smuggling of poppy husk or opium and is not a habitual offender or dealer in contraband goods, cannot be considered to fulfil the mandatory provisions mentioned under Section 37 of the Act. Rather from the allegations in the first information report it is apparent that it was a case of heavy recovery of contraband poppy husk and also points that such a heavy recovery was meant for sale out of greed of money and would be hazardous to public health.

Faced with this situation the learned counsel for Dhanna placed reliance on the authority of the apex Court in Aslam Babalal Desai v. State of Maharashtra, 1993(1) Recent Criminal Report 600 , wherein it was observed as under :

"Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purposes of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken in custody merely on the filing of a charge sheet but there must exist special reasons for so doing besides the fact that the charge sheet reveals the commission of an nonbailable crime. The ratio of Rajnikant''s case (1990 Crl.L.J. 62) to the extent it is inconsistent herewith does not, with respect, state the law correctly."

There is no dispute with the proposition of law that once accused has been released on bail his liberty cannot be interfered with lightly and cancellation of the bail has to be for strong and cogent reasons as contemplated under subsection (5) of Section 437 of subsection (2) of Section 439 of the Criminal Procedure Code.

In Raghbir Singh v. State of Bihar, A.I.R. 1987 S.C. 149 the apex Court while mentioning some of the grounds on which the bail can be cancelled under Sections 437(5) and 439(2) of the Code, it is mentioned that these grounds are illustrative and not exhaustive. While dealing with the powers of the High Court under Section 439 of the Code to grant bail, it was observed in Narcotics Control Bureau v. Kishan Lal and others, AIR 1991 SC 558 as under :

"Section 37 as amended starts with a non obstante clause stating that notwithstanding anything 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 were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulations of operations relating to narcotics drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.P.C. regarding bail, in our view, it cannot be held that the High Court''s powers to grant bail under Section 439 Cr.P.C. are not subject to the limitation mentioned under Section 37 of NDPS Act. The non obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr.P.C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4 Cr.P.C. may be noted which reads thus :

"(4) Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise, dealing with such offences."

It thus can be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr.P.C. 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 v. Union of India, (1963) 1 SCR 393, (AIR 1982 SC 1413) regarding mode of interpretation the Supreme Court observed as follows at Page 1419 of AIR :

"The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons 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."

As already noted, Section 37 of the NDPS Act starts with a nonobstante clause stating that notwithstanding anything 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 statisfied. Consequently, the power to grant bail under any of the provisions of Cr.P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act."

It was further held by the apex Court in the afore cited authority that "the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail."

For the foregoing reasons, I am of the considered view that the learned Additional Sessions Judge, Patiala, has gravely erred in granting bail to Dhannarespondent without considering the bar to grant bail under Section 37 of the NDPS Act in case of heavy recovery of poppy husk, and the said order cannot be legally sustained. Apart from this fact, the respondent would be in a position to tamper with the prosecution evidence and to indulge in illegal activities concerning transport and sale of contraband articles which would be hazardous to public health. The bail already granted to Dhannarespondent by Additional Sessions Judge, Patiala is hereby cancelled. Dhanna is directed to be taken into custody and to face trial, according to law.

The case of Mangal Singhpetitioner who was driving the truck is also on the same footing as that of Dhanna. In view of the heavy quantity of poppy husk recovered in this case no ground to grant bail to the petitioner at this stage has been made out. His application for bail is accordingly declined. The Investigating Agency is, however, directed to submit the challan in this case within two weeks.