Mathew @ Raju vs State of Kerala

R. Basant, J.—Is the offence punishable u/s 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act a bailable or a non-bailable one? This is bone of contention in this application for bail.

The facts are simple. The first accused was allegedly involved in cultivation of ganja punishable u/s 20(i) of the Act. He was apprehended. His statement was recorded. It was revealed that some time earlier, the first accused had sold to the petitioner and the petitioner had purchased 500 grams of dried ganja. The petitioner was also proceeded against. He was arrested on 11 -1 -2008. He continues in custody from that date.

The learned Counsel for the petitioner submits that the offence u/s 20(b)(ii)(A) is bailable and the detention of the petitioner, who is willing to offer bail, is unjustified.

The learned Prosecutor, on the contrary, contends that Section 37 of the N.D.P.S. Act declares all offences under the N.D.P.S. Act to be non-bailable and therefore notwithstanding the fact that Section 37(1)(b) is not applicable, the offence continues to be a non-bailable offence and the Prosecutor is justified in opposing the application. The learned Prosecutor submits that the declaration that the offence u/s 20(b)(ii)(A) is bailable would invite pernicious consequences substantially reducing the seriousness of the offence alleged. That would in turn lead to police releasing the accused on bail when they are found in possession of small quantities of ganja. This is not justified, it is contended.

A look as the law first. Section 20(b)(ii)(A) reads as follows:

Punishment for contravention in relation to cannabis plant and cannabis -Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or used cannabis, shall be punishable:

(i) where such contravention relates to Clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to Sub-clause (b):

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both:

(emphasis supplied)

It is very evident from a reading of the said section that the offence is punishable with imprisonment for a term which may extend to six months of fine or both. If there is no special declaration to make the offence non-bailable, one has got to go to the schedule to the Cr.P.C. to ascertain whether the offence is bailable or non-bailable. This conclusion follows easily from Section 2(a), which defines a "bailable offence" as also Section 4 and 5 of the Cr.P.C. which stipulate that any offence under a special law must be investigated, enquired into, tried or otherwise dealt with in accordance with the Cr.P.C. if the special law does not make any special provision. There can also be no doubt that under the schedule to the Cr.P.C. (the last entry in Part II) that any offence punishable with imprisonment for less than three years or with fine only shall be non cognizable and bailable.

There can hence be no doubt that in the absence of a special provision in Narcotic Drugs and Psychotropic Substances Act, the offence u/s 20(b)(ii)(A) must be held to be a bailable one.

The contention is that there is adequate provision in Section 37 of the Narcotic Drugs and Psychotropic Substances Act. It declares all offences under the Narcotic Drugs and Psychotropic Substances Act to be non bailable, contends the learned Public Prosecutor. I shall first look at Section 37. It reads as follows:

Offence to be cognizable and non-bailable- (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 [offences u/s 19 or Section 24 or Section 27-A and also for offences involving commercial quantity] 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.

(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

(emphasis supplied)

A reading of Section 37 sans the head note must clearly show that there is no specific stipulation in the body of Section 37 which makes the offence u/s 20(b)(ii)(A) a non bailable one. The stipulation in the schedule to the Cr.P.C. is not seen modified by any specific provision in Section 37. The body of Section 37 is silent as to whether an offence under the Narcotic Drugs and Psychotropic Substances Act is bailable or non bailable. Section 37(1)(b) speaks of a special provision in relation to certain offences under the Narcotic Drugs and Psychotropic Substances Act. Offences u/s 19 or 24 or 27A and also offences involving commercial quantity are governed by the special provisions stipulated in Section 37(1)(b) with regard to the grant of bail. Section 37(2) reiterates that the limitation in Clause (b) are in addition to the limitations under the Cr.P.C.

Thus there can be trace of doubt that going by the language employed in the body of Section 37, the offence u/s 20(b)(ii)(A) is a bailable offence.

The learned Public Prosecutor contends that the head note of Section 37 clearly shows that all offences under the Narcotic Drugs and Psychotropic Substances Act are cognizable and bailable. It is true that the head not reads thus

Offences to be Cognizable and non-bailable.

In the body of Section 37, there is nothing that declare that all offences under the Narcotic Drugs and Psychotropic Substances Act shall be non bailable but the head note suggests such a possibility. There is clear, apparent and evidence incongruity between the head note and the body of Section 37. The question is what would prevail.

The learned Public Prosecutor further points out that the statements of objects and reasons in the amendment Act 2 of 1989 by which Section 37 was amended, does also make it clear that the legislative exercise of amendment was inter alia "to provide that the offences shall be cognizable and non bailable". Clause 2(vii) stipulates that the purpose of amendment was to provide that the offences shall be cognizable and non bailable. The earlier Section 37 was amended in 1989 to include this head note.

Thus it is seen that the objects and reasons as also the head note indicate and suggest that all offences under the Narcotic Drugs and Psychotropic Substances Act are non bailable whereas the clear and unambiguous stipulations in the body of Section 37 do not lead to such a conclusion.

It is not necessary to search for the principles of law applicable. It is axiomatic in the interpretation of statutes that when the enacted provision of the statue in the body of the statutory provision leads to a particular conclusion, the head note or the objects and reasons cannot nullify or modify the effect of the enacted provisions in the body of the statute. Where there is confusion or ambiguity arising from the words used in the statutory provision, certainly external aids like head not and objects and reasons can be made use of. When the statutory provision is clear, cogent and unambiguous, it is impermissible to resort to external aids like the head note, marginal note or the objects and reasons to come to a conclusion contrary to the conclusion which is plain reading of the statutory provisions yields. Maxwell on the interpretation of Statute accepts this principle. It will be apposite in this context to extract from page 11 of the 12th edition of Maxwell wherein it is stated as follows:

The (headings) cannot control the plain words of the statute 1923 1 Ch.143, but they may explain ambiguous words, (1984) 9 App. Cas.365. But "while the court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words in the section, where there cannot be any doubt as to their ordinary meaning, R. v. Surrey (North-Eastern Area) Assessment Committee (1948) 1 K.B. 29, per Lord Goddard CJ. at pp. 32, 33.

The Supreme Court had occasion to consider this question in the decision in Frick India Ltd. v. Union of India of the said decision, it is unambiguously held that the headnote cannot modify the plain meaning in the statutory provisions. The following words appear in para. 8:

It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision. Only, in the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision.

The same principle has been followed by this Court in Gokul Chit Funds v. Kochu Ouseph Vareed 1976 KLT 747 (D.B.) and Kerala State Housing Board v. Yusuff 1984 KLT 55 (D.B.).

In fact, I do note that there can be no confusion on this aspect as to whether the offence u/s 20(b)(ii)(A) is bailable or not because a Division Bench of this Court in Shaji Vs. Kerala State, while answering a reference of the very specific issue, in para. 22, the Division Bench had answered the question thus.

Going by Section 36 of the Act, all offences under the Act, punishable with imprisonment for a period of more than there years shall be triable only by the Special Court. An offence under the Act, involving small quantity, is punishable as per Section 20(c) with rigorous imprisonment for a term which may extend upto six months only. The last entry in Part II of the Schedule to the Code of Criminal Procedure, 1973, provides that offences under laws other than Indian Penal Code, punishable with imprisonment for less than three years or with the shall be "No-cognizable and ''Bailable'' to be tried by ''Any Magistrate''. The offence under the Act is made triable by a Special Court, in terms of Section 36A(1)(a) of the Act, if it is "punishable with imprisonment for a term of more than three years". Of course, all offences under the Act are cognizable going by Section 37(1)(a) of the Act. Except to that extent, for trial of the offences, the provisions in the Code of Criminal Procedure, 1973, shall be applied going by Section 4(2) of that Code. So, the offences under the Act, which are punishable with imprisonment for a term not exceeding three years, are bailable offences. (emphasis supplied)

I am bound by the decision of the Division Bench. The learned Public Prosecutor contends that the said decision did not take into consideration the head note of Section 37 as also the stipulation in the objects and reasons of the 1989 amendment. Even if those aids for construction were also looked into, the conclusion cannot be different. It follows that the petitioner is entitled for bail u/s 436 Cr.P.C. itself, the offence alleged against him being bailable only.

In the result, this application is allowed. The petitioner shall be released on bail on condition that the petitioner executed a bond for Rs. 25,000/- (Rupees Twenty Five thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate.