Palani vs State

D. Murugesan, J.—The petitioner has approached this Court seeking for grant of bail in C.C. No. 261 of 2008 on the file of the Special

District and Sessions Judge EC and NDPS Act Cases, Madurai.

A case was registered against the petitioner for the alleged offence under Sections 8(c) r/w. 20(b)(ii)(C) and Section 25 of Narcotics Drug and

Psychotropic Substance Act. He was arrested and remanded to judicial custody on 18/10/2007. In support of the petition, the petitioner had

argued before the learned Single Judge that he is in judicial custody for a period of 283 days and co-accused No. 3 was released on bail in

Criminal Original Petition No. 4341 of 2008 dated 18/6/2008. By order dated 13/8/2008, the learned Single Judge ordered as follows:

The learned Counsel for the petitioner submits that the petitioner is one of the accused in this case and the allegation is that the Inspector of

Police while conducting a raid along with his party on information, searched over the Auto and found two bags of 35 Kg of Ganja in each and

three persons, who were in the Auto were arrested. The learned Counsel for the petitioner further submits that among three persons one accused

by name Raman had been released on bail by this Court on 18.06.2008 in Crl.O.P.(MD). No. 4341 of 2008 on the ground that the final report

has been filed and no other case is pending against him.

This Court perused a copy of the order passed by this Court in Crl.O.P.(MD). No. 4341 of 2008 dated 18.6.2008, in which it is observed in

the order as follows:

It is represented on the side of the petitioner that the petitioner is an auto driver and he has no connection whatsoever with the alleged offences

and he has been falsely implicated in the present case and from 18.10.2007, he is in custody and under the said circumstances, the present petition

is filed for getting bail.

The learned Government Advocate (Criminal Side) has submitted the concerned Case Diary for the perusal of the Court and the Court has

perused the same and found that one Paramasivam, Sub-Inspector of Police, has lodged the complaint on 17.10.2007 and the same has been

registered in crime No. 179 of 2007 under the said Sections. The Court has further perused the case diary and found that against petitioner and

others a final report has been filed on 13.01.2008. Further it is seen from the record that the petitioner is an auto driver and the petitioner has been

arrested only on the basis of confession alleged to have been given by the co-accused.

Considering the fact that the petitioner is an auto driver and since no case has been pending against him and since a final report has been filed

against the petitioner, this Court is of the view to grant bail to the petitioner subject to the following condition.

The quantity involved in this case is 70 Kg of Ganja, which is a commercial quantity and as such, Section 37 of NDPS Act is attracted. But the

co-accused Raman is released on bail without any observation with regard to Section 37 of NDPS Act.

Mr. Siva Iyyappan, the learned Government Advocate (Criminal Side), who represented in Crl.O.P.(MD). No. 4341 of 2008 was heard. He

had submitted that he brought to the notice of the Court that Section 37 of NDPS Act stands as bar for granting bail, but it was not incorporated in

the order and he further submitted that the total quantity that was available in the auto rickshaw was weighing about 70 kg Ganja.

The learned Counsel for the petitioner vehemently contended that as the co-accused had already been released on bail, applying the principles

of equality, this petitioner also should be released on bail. But this Court hesitates to follow the order passed in Crl.O.P.(MD). No. 4341 of 2008,

since Section 37 of NDPS Act stands on the way of granting bail. Further taking into consideration that the accused Raman, who has already

released on bail, though he is only a driver of the auto, as per Section 35 of the NDPS Act, the culpable mental state can be presumed and the

burden lies on the accused to prove the fact that he had no such mental state and such fact should be proved beyond a reasonable doubt.

Though equality should be maintained, as I am not agreeing the reasons given for release of the accused Raman in Crl.O.P.(MD). No. 431 of

2008; I am not able to follow and apply the same reason for the release of this petitioner on bail, this Court refers this matter to the Division Bench

of this Court. The Registry is directed to place the entire records before the Senior Judge, Madurai Bench of Madras High Court for obtaining

necessary orders.

In view of the above order, the matter has been directed to be placed before the Division Bench. The petition was taken up for hearing on

25/8/2008, on which date, the learned Counsel for the petitioner had sought time. Accordingly, it was adjourned to 27/8/2008. Even on that date,

the petitioner was not ready and therefore, the matter was adjourned to 1/9/2008. Even when the petition was taken up for hearing on 1/9/2008,

only an adjournment was asked and therefore, the matter was called today i.e., 2/9/2008.

When the matter was taken up for hearing today in the forenoon, the learned Counsel appearing for the petitioner has asked for a pass over.

Accordingly, the matter was directed to be called at 2.30 p.m. Even at 2.30 p.m., the counsel is not ready to argue the matter, but has sought only

for adjournment.

Considering the facts and circumstances of the case and also considering the fact that the issue arises almost everyday before the Court, we are

not inclined to give any further adjournments and consequently, propose to dispose of this petition on merit.

In so far as the case which is pending against the petitioner is concerned, there is no dispute as he has been implicated for the offence under

Sections 8(c) r/w. 20(b)(ii)(C) and Section 25 of Narcotics Drug and Psychotropic Substance Act.

Section 37 of Narcotics Drug and Psychotropic Substance Act, 1985 herein after referred to as the ""Act"" reads as under.

Offences to be cognisable 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 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.

(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.

The said Section came up for consideration before the Apex Court in Customs, New Delhi Vs. Ahmadalieva Nodira, , wherein the Apex Court

in paragraph 7 had observed as follows:

The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public

Prosecutor, the other twin conditions which really have relevance so far as the present respondent accused is concerned, are: the satisfaction of the

Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any

offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to

be based on reasonable grounds. The expression ''reasonable grounds'' means something more than prima facie grounds. It contemplates

substantial probable causes for believing the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision

requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged

offence.

The Apex Court in the earlier judgment, in fact had referred to the judgment reported in Union of India (UOI) Vs. Thamisharasi and Others, ,

wherein the Apex Court had observed as follows:

Clause (b) of Sub-section (1) of Section 37 imposes limitations on granting bail in addition to those provided under the Code. The two limitations

are: (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the Court that there are reasonable grounds

for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

A careful reading of the provision of Section 37 of the Act and the judgments of the Apex Court would make it clear that though there is no

absolute bar for grant of bail in respect to a person who is accused of an offence punishable for offences u/s 19 or Section 24 or Section 27A and

also for the offences involving commercial quantity such bail could be granted after the Public Prosecutor is given an opportunity and even when

the Public Prosecutor opposes bail in the event the Court satisfies itself that there are reasonable grounds for believing that the accused is not guilty

of offence and that he is not likely to commit any offence while on bail.

In fact, the Apex Court considered the word ""reasonable grounds"" in the judgment reported in (2008) 1 MLJ Cri 1442 SC (Union of India v.

Shri Shiv Shankar Kesari) has observed in paragraphs 7 to 11 as follows:

The expression used in Section 37(1)(b)(ii) is ""reasonable grounds"". The expression means something more than prima facie grounds. It

connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in

turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not

guilty of the offence charged.

The word ""reasonable"" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act

reasonably, knows or ought to know. It is difficult to give an exact definition of the word ''reasonable''. Stroud''s Judicial Dictionary, Fourth

Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word ''reasonable''. Reason varies in its conclusions

according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic

logic sounds now like the jingling of a child''s toy.

It is often said ""an attempt to give a specific meaning to the word ''reasonable'' is trying to count what is not number and measure what is not

space"". The author of ''words and pharases'' (Permanent Edition) has quoted from In Re: Nice & Schreiber 123 F.987, 988 to give a plausible

meaning for the said word. He says, ""the expression ''reasonable'' is a relative term, and the facts of the particular controversy must be considered

before the question as to what constitutes reasonable can be determined"". It is not meant to be expedient or convenient but certainly something

more than that.

The word ''reasonable'' signifies ""in accordance with reason"". In the ultimate analysis it is a question of fact, whether a particular act is

reasonable or not depends on the circumstances in a given situation.

The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.

It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are

reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has

not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

(See also N.R. Mon Vs. Md. Nasimuddin, .

Therefore, it appears to us that the general rule for the use of discretionary power of grant of bail cannot be made applicable to the offence

under NDPS Act as grant of bail will be examined and the Court must satisfy itself that there are reasonable grounds for believing that the accused

is not guilty of offence and further, the accused is not likely to commit any offence while on bail. Further, in view of the specific provisions of Sub-

Section 2 of Section 37 comtemplating above limitations to be in addition to the limitations for grant of bail under the code of Criminal Procedure,

the power of the Court to grant bail in NDPS Cases where the punishment is five years or more is contemplated should be exercised with great

caution, keeping in view by the legislative intend namely the parameters of Section 37(1)(b)(i) and (ii).

On the facts of this case, no materials are placed before this Court either by way of submission or in the form of affidavit or even in the form of

petition for bail to satisfy the Court to believe that he is not guilty of the offence and also he is not likely to commit any offence while on bail. In

these circumstances, the petitioner is not entitled to grant on bail.

The other claim of the petitioner is that the co-accused by name Raman who has also been implicated for similar offences had been granted

bail. We have perused the order of the learned Single Judge in Criminal Original Petition No. 4341 of 2008 dated 18/6/2008. The learned Single

Judge while considering the fact has held that the said accused was implicated in the case only on the basis of confession alleged to have been

given by the co-accused. No such argument is advanced before us on merits on par with the said accused. Hence, the contention that the benefit of

the said order should be extended to the petitioner cannot be accepted.

For all the above reasons, this Criminal Original Petition is dismissed as the petitioner has not made out any case for grant of bail.