Prahlad Rekhe vs State of Maharashtra

Question as posed in this application pertains to applicability of proviso to sub-s. (2) of S. 167 of the Code of Criminal Procedure (the Code) in the matter of grant of bail u/S. 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act").

The applicant was arrested on 1-12-1989 on having found in possession 4.90 Kgs of Ganja. He is, therefore, being prosecuted for the offence punishable u/S. 20 of the Act. The prosecution on 6-2-1990 filed a chargesheet i.e. beyond 60 days.

Mr. Sirpurkar, the learned Counsel appearing for the applicant, therefore, asserted that the applicant is entitled to be released on bail in view of the provisions laid down in proviso (a) to sub-s. (2) of S. 167 of the Code. He placed reliance on the decision delivered by the Supreme Court in case of Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, . The applicant-Rajanikant in that case was prosecuted for the offence punishable under the Act. The Supreme Court was observed that a right to bail under these provisions is absolute. The magistrate has no power to remand a person beyond the stipulated period. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bond. Mr. Sirpurkar advanced a submission that the Supreme Court has explicity considered the applicability of S. 162(2) proviso (a) to release the accused on bail for the offence punishable under the Act.

Mr. Sirpurkar also tried to submit that in view of the observation of the Supreme Court, the applicant on completion of the stipulated period under the custody, is not required even to apply for grant of bail. The Magistrate being under Legislative command is left with no choice but to release the applicant on ball. As such, conditions laid down in S. 37 of the Act need no adherence, as they do not prevail over the provisions of S. 167(2) Proviso.

S. 37 of the Act as then originally stood reads as thus "Offence to be cognizable - Notwithstanding anything contained in the Code, every offence punishable under this Act, shall be cognizable. The Act then did not contain a specific provision for grant of bail for the offence punishable under the Act. Matter was governed by the Code.

Section 37 which is now in vogue came to be introduced on Statute book by Act 2 of 1989. It has on 6-1-1989 received he assent of the President. It is notified on 9-1-1989 in the Gazette of India. S. 37 now substituted read as thus :-

"Offences 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 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 oppose the application for such release, and

(iii) where the Public Prosecutor oppose 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-s. (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 is force on granting of bail."

Section 37 has thus incorporated its independent scheme for grant of bail for the offences punishable under the Act.

The Supreme Court on 8-5-1989 delivered the judgment in the case cited supra. The Supreme Court has examined the order of the High Court passed in exercise of power u/S. 439(2) of the Code cancelling the bail which was granted u/S. 167(2) proviso. The Supreme Court referred to the dictum laid down in Raghubir Singh and Others Vs. State of Bihar, that the order of release on bail u/S. 167(2) proviso was not on merit but one in default. Such order could be rectified for special reason after the defect was cured. The Supreme Court in para 13 of the report in case cited supra has held that :

"The accused cannot, therefore, claim any special right to remain on bail. If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under proviso (a) to S. 167(2) could be cancelled."

The Supreme Court in the ultimate result upheld the order of cancellation of the High Court and dismissed the petition. The Supreme Court had no occasion to consider, the question of the applicability of S. 167(2) proviso, in the matter of grant of bail u/S. 37 of the Act which is now substituted. It would be an error to infer that by necessary implication the Supreme Court extended the benefit provided u/S. 167(2) proviso of the Code to the matter of grant of bail u/S. 37 of the Act.

The learned Counsel made a submission that S. 37 no doubt begins with non obstante clause, however, sub-s. (2) of S. 37 specifically borrows the provisions laid down under the Code in the matter of grant of bail. Beside this, various provisions under the Act, for the governance of various matters indicated therein adopt the provisions under the Code. He in support, particularly placed reliance on Ss. 36-C and 51 of the Act. The Counsel, therefore, reiterated that S. 167(2) proviso has admittedly an applicability even in the matter of grant of bail u/S. 37 of the Act. Submissions do not appear to be well founded.

The Act of 1985 has been introduced with a specific object to make the law relating to the Narcotic Drugs and other matter connected thereto more stringent so as to control the menance thereof and further to implement the provisions of international convention on narcotic drugs. The statement of objects and reasons of the Act 2 of 1989 solemnly declares that "Even though major offences are non-bailable by virtue of the level of punishment, on technical ground the drugs offenders were being released on bail". Amending Act has aimed to strengthen the existing law.

Chapter IV deals with various offences and penalties provided therefore under the Act. S. 36 as then orginally stood provided for summary trial of the offences by the Magistrate. S. 36 now substituted provides for the constitution of the Special Court. S. 36-A(1)(a) which is now introduced lays down that notwithstanding anything contained in the Code all offences under the Act are triable by a Special Court. S. 36-B provides for the applicability of Chapters XXIX add XXX of the Code which deal with appeal, revision and references. S. 36-C on which reliance is placed and which is now introduced provides that the provisions of the Code to the extent consistent shall apply to the proceedings in before the Special Court. It is quite clear that relevant provisions of the Code as relates to procedure have applicability in conduct of proceedings under the Act before the Special Court. However, S. 36-C does not borrow the provisions of Code pertaining to right and obligation of parties.

Chapter V deals with the procedure regarding issuance of warrant, entry, search, seizure, arrest etc. etc. S. 51 therein (on which reliance is placed) refers to the applicability of the relevant provisions of the Code for the proceedings relating to issuance of warrants etc. etc. It is again crystally clear that the applicability is for a restricted, purpose. Sec. 51-A(4) reads as thus :-

"Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn u/sub-s. (2) and certified by the Magistrate, as primary evidence in respect of such offence."

This section which is now introduced has brought a substantial change regarding admissibility of certain material as primary evidence for trial of the offences, under the Act. Section has immunised the admissibility of evidence from the test as laid down under the Indian Evidence Act as well under the Code.

Taking into consideration the entire schemes, the Legislature has consciously adopted certain provisions under the Code for regulating specific matters under the Act. The adoption of the Code is not with a general applicability but for a restricted purpose and only for the aspects and subjects as specifically indicated under the corresponding provisions of the Act. It is explicit that the Parliament with a definite object as declared, refrained the general applicability of the Code to the offences, trial and other matters under the Act.

Bearing in mind the specific object of the Act i.e. to make the law more stringent, also to prevent release of the drug offender on bail on technical ground and the Scheme as codified under the Act, I am definite in my conclusion that privilege u/s 167(2) proviso (a) of the Code cannot ipso facto be extended in the matter of grant of bail u/s 37 of the Act.

Section 37 opens with non obstante clause which does not permit the applicability of Code, to the matters enumerated therein. Cl. (b) of sub-s. (1) of S. 37 unequivocally denies the grant of bail for certain offences unless conditions laid down in sub-cls. (i) and (ii) are fulfilled. Sub-s. (2) proclaims that these limitations are in addition to those others provided under the Code and in any other law. Chapter XXXIII of the Code deals with the grant of bail. It imposes several conditions for such grant, such as executing bond, refusing to release on failure to comply with the condition laid down, refusing to grant bail if previous convict for offence punishable with death, recording of special reason by the Court, arrest of person who is released on bail etc. etc. Such conditions as laid down by the Code are within the contemplation of the term "limitation" as envisaged by sub-s. (2) of S. 37 of the Act.

These provisions u/s 167 do not however carve out any condition, limitation or restriction in the matter of grant of bail. S. 167 which is a part of Chapter XII of the Code deals with the investigation. S. 167(2) proviso (a) has issued, as observed by the Supreme Court a Legislative command to the Court to release the accused on bail in the eventuality of default to complete the investigation within a specified period. The section intends to minimise the harassment to the accused in custody in the case of prolonged investigation. The Section instead of putting limitation in the matter of grant of bail, virtually confers a privilege on accused to claim release on bail in case of default as envisaged. Sub-s. (2) of S. 37 of the Act while adopting limitation in the matter of grant of bail under the Code, even by any implication, does not endeavour to embarrass, proviso to S. 167(2). These provisions since not being a limitation in the matter of release on bail cannot be adopted through the media of sub-sec. (2) of S. 37 of the Act. Any attempt to extend the applicability of S. 167(2) proviso, to the matter of grant of bail u/s 37 would nullify the overriding effect provided by the non obstante clause over the Code. The applicant, therefore, cannot claim a benefit of being released on bail for the offence punishable u/s 20 of the Act of 1985 by taking resort to these provisions as contained in S. 167 of the Code since the prosecution failed to complete the investigation and file charge-sheet within a period of 60 days.

The accused is charged for having found in possession of 4.90 Kgs of Ganja. According to Mr. Sirpurkar from the papers of the investigation, there is no identification or house number as disclosed indicating that he is either an owner, lessee, licensee of the house. As such, in view of Mr. Sirpurkar he (the applicant) was not liable to be connected with the offence and as such no prima facie case is made out. The copy of the charge-sheet is shown to me which refers recovery of 4.90 Kgs. of Ganja from the house of applicant Prahlad Rakhe. In seizure panchanama, which is recorded on the same day i.e. 1-12-1989, it is stated that the Panchas as per the information received in the Police Station reached the house of Prahlad Rakhe. They have further stated that by standing before house in question they gave a call by referring the name of applicant as Prahlad Rekhe. On receiving the call, one person came out of the said house. They asked him his name and he said that "my name is, Prahlad Rekhe". On identifying the accused applicant the Panchas entered into the said house and seized the narcotic substance i.e. Ganja. It is true that in panchanama house number is not given but from the description and the statements, made by the panchas, it is apparent that the applicant was in possession of the premises from where the Ganja was seized. In these circumstances, I do not find any substance in the contention of the learned Counsel. No other ground has been urged. The applicant does not deserve to be released on bail, in view of the seriousness of the offence. The application is, therefore, rejected.

Application dismissed.