Rajbir Singh vs State of Haryana

Harphul Singh Brar, J.

This is an application for bail pending appeal in the High Court. The applicantappellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called ''the Act'') and sentenced to 10 years rigorous imprisonment and a fine of rupees one lac. In default of payment of fine the accused was further ordered to undergo rigorous imprisonment for two years.

The learned counsel for the applicantappellant (hereinafter called ''the applicant'') contends that no case is made out against the applicant as the mandatory provisions of the Act, particularly of Section 50, have not been complied with. The learned counsel further contends that only 11 kgs of poppy husk has been recovered from the applicant and that he has already remained in jail in this case for about 14 months. In these circumstances, learned counsel urges that the applicant may be allowed bail during the pendency of the appeal. He has cited the following authorities of this Court in order to substantiate his contentions :

(i) Jeet Singh alias Jeeti v. State of Punjab, 1995(2) RCR 588.

(ii) Karnail Singh v. State of Haryana, 1996(1) RCR 137.

(iii) Lakhwant Singh v. State of Punjab, 1996(3) RCR 834.

(iv) Mubarik v. State of Haryana, 1996(2) RCR 656.

So far as the contention of the learned counsel that no case is made out against the applicant is concerned, I cannot go into this question as the appeal of the applicant is pending in the High Court. The applicant stands convicted under Section 15 of the Act by the trial Court and that matter shall be decided only when the appeal comes up for final hearing.

REGARDING BAIL :

The powers of the Court to grant bail under Section 439 Cr.P.C., are subject to the limitations contained in the amended Section 37 of the Act and the restrictions placed on the powers of the Court in this section are applicable to the High Court also in the matter of granting bail. This point of law has already been decided as far back as in the year 1991 by the Supreme Court in Narcotics Control Bureau v. Kishan Lal and others, 1991(1) Recent CR 338. Similar view has been taken by a Division Bench of this Court in Crl. Misc No. 12027 of 1995 in Crl. Appeal No. 143SB95 Surjit Singh v. State of Punjab.. It has been held by the Division Bench, therein, that before bail is granted to a person convicted for an offence under the Act, the provisions of Section 37 would be kept in view. Relevant portion of the order in Surjit Singh''s case (supra), is reproduced as under :

"We, however, should not be held to mean that the grant of bail to a person convicted for an offence under the Act should flow easily as traffic in drugs has assumed alarming proportion. We, therefore, further endorse the decision of the Division Bench of the Delhi High Court and hold that before bail is granted to a person convicted for an offence under the Act, the provisions of Section 37 would be kept in view."

Anyhow, we need not to go to the orders of the High Courts when the Supreme Court has finally held in Narcotic Control Bureau''s case (supra), that grant of bail under Section 439 Cr.P.C. is subject to the limitations contained in the amended Section 37 of the Act.

Now, it becomes necessary to refer to Section 37 of the Act which speaks of the limitations on granting of bail under the Act and it reads as under :

"37. Offences to be cognizable and nonbailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(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 SubSection (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail."

Thus, from the reading of Section 37, it becomes clear that following limitations have been placed for granting bail for an offence under the Act in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail :

(i) The Public Prosecutor has been given an opportunity to oppose the application for such release;

(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;

(iii) that the applicant is not likely to commit any offence while on bail.

Conditions No. (i) has of course been complied with as notice in this application was given to the Public Prosecutor who has been given an opportunity to oppose the application for release of the applicant.

As regards condition No. (ii), admittedly the appeal of the applicant is pending in this Court and that has not yet been fixed for final hearing. It becomes difficult for the Court to believe, at this stage, without scanning the whole evidence, on file, that there are reasonable grounds for believing that the applicant is not guilty of an offence under Section 15 of the Act.

For fulfilling the third condition i.e. for the Court to believe that the applicant is not likely to commit any offence while on bail, there is no material before me to hold that if the applicant is released on bail he is not likely to commit any offence while on bail.

Let me now discuss some orders of this Court placed before me in which bail was granted to some of the convicts while their appeals were pending in the Court.

In Jeet Singh alias Jeeti''s case (supra), remand of the accused under Clause (b) of subsection (1) of Section 36A of the Act beyond 15 days was given by the Judicial Magistrate. The argument raised in this case was that under clause (b) of subsection (1) of Section 36A of the Act, the learned Judicial Magistrate could authorise the detention of the petitioner for the period not exceeding 15 days and the order of detention of the petitioner beyond 15 days given by the Magistrate was, thus, unauthorised and the accused in that case was entitled for bail. The learned Magistrate, in Jeet Singh''s case (supra), after hearing the learned counsel for the parties, held as under :

"The fact regarding authorising detention of the petitioner beyond 15 days by the Judicial Magistrate I Class has not been controverted by the learned counsel for the State. In Crl. Misc No. 9322M of 1993, Janta Singh v. State of Punjab, the matter with regard to the interpretation of clause (b) of subsection (1) of Section 36A of the Act has been referred by the learned Single bench of this Court to larger Bench vide order dated 17th August, 1993. Thereafter, the matter was heard by the Division Bench of his Court on 30.11.1993 and the Division Bench directed that the matter be placed before Hon''ble Chief Justice for constitution of the Full Bench to resolve the controversy. Keeping in view the facts stated above and also the alleged recovery made from the petitioner I am of the opinion that it is a fit case for allowing bail. Accordingly, I direct that the petitioner be released on bail on his furnishing bail bonds in the sum of Rs. 25,000/ with one surety of the like amount to the satisfaction of the Chief Judicial Magistrate, Faridkot."

Apart from the legal point, as to whether a Magistrate under clause (b) of subsection (1) of Section 36A of the Act, could remand the accused beyond 15 days (which point was referred to a Full Bench of the High Court), the learned Judge also took into consideration the alleged recovery of 10 kgs of poppy husk recovered from the petitioner, while releasing the petitioner on bail.

It may be noted that while granting bail to the petitioner the provisions of section 37 of the Act were not taken into consideration at all which are to be followed by the High Court before granting bail to the applicant in such cases, and as has been stated above, this is a mandate of the Supreme Court that the powers of the High Court to grant bail under Section 439 Cr.P.C. are subject to the limitations contained in Section 37 of the Act.

In Karnail Singh''s case (supra), submissions were made before the Hon''ble Judge that the petitioner had been in custody for a period of more than 7 months and the alleged recovery from the petitioner was only 3 kgs of poppy husk and provisions of Section 30 of the Act were violated inasmuch as the option to be searched before a Magistrate was not given to the petitioner. The learned Jude after taking into consideration the submission made by the learned counsel for the petitioner and particularly the fact that only 3 kgs of poppy husk had been recovered from the appellant, was of the view that it was a fit case for suspension of sentence and fine and accordingly, the learned Judge released the petitioner on bail. The relevant portion of the order in Karnail Singh''s case (supra) is reproduced as under :

"Mr. A.C. Jain, the learned counsel for the petitioner submits that the petitioner has been in custody for a period of more than seven months. He further submits that the alleged recovery from the petitioner is only 3 kilograms of poppy husk and provisions of Section 30 of the Act were violated in this case inasmuch as the option to be searched before a Magistrate was not given to the petitioner. Keeping in view the submissions made by the learned counsel for the petitioner and particularly the fact that only 3 kgs of poppy husk has been recovered from the appellant, I am of the view that it is a fit case for suspension of sentence and fine. Accordingly, I direct that sentence awarded to the petitioner as well as the fine imposed upon him by the learned trial Court shall remain suspended during the pendency of the appeal and the appellant/petitioner shall be released on bail on furnishing bail bonds in the sum of Rs. 25,000/ with one surety of the like amount to the satisfaction of the Chief Judicial Magistrate, Ambala."

In Karnail Singh''s case (supra), again the learned judge seems to have not taken into consideration the mandatory provisions of Section 37 of the Act before granting bail to the petitioner. The main consideration for granting bail was that only 3 kgs of poppy husk was recovered from the applicantappellant.

In Lakhwant Singh''s case (supra) while grating bail, the learned Judge of this Court took into consideration that only 5 kgs of poppy husk had been recovered from the applicant and he had already undergone rigorous imprisonment for three years. Even in this case, the learned Judge did not discuss the mandatory provisions of Section 37 before granting bail to be applicant.

In Mubarik''s case (supra), the learned judge held that as the petitioner had already remained about 2 years and 2 months in ail, and it was not possible in the near future of his appeal being heard and also that his appeal was fairly arguable, the petitioner was entitled to bail. In this case also, the learned judge did not take into consideration the mandatory provisions of Section 37 of the Act before releasing the petitionerapplicant on bail.

From the abovesaid orders, it is thus clear, that the Hon''ble Judges took into consideration small quantity of poppy husk recovered from the applicants; six months to about 2 years 2 months spent in jail by the convictsappellants or the chances of appeals of some of the appellants being not heard in near future, while granting bail to the applicantsappellants in those cases.

The question that arises for consideration before me is as to whether I should also follow the orders of the Hon''ble Judges of this Court while granting bail to the petitioners in those cases. With great regard to the Hon''ble Judge, I am unable to persuade myself to release the applicant appellant on bail in the present case, on the following grounds :

(i) The order of grant of bail in a criminal case cannot be followed as a precedent while granting bail in another case;

(ii) In all the cases quoted above, while granting bail to the petitioners, mandatory provisions of Section 37 of the Act have not been taken into consideration by the Hon''ble Judges.

The High Court while granting bail to a petitioner under the Act cannot go beyond the specific provisions of the Act. In my considered view, before a bail is granted under Act, it has to be held by the Court as a fact that it is satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such an offence and that he is not likely to commit any offence while on bail.

The learned counsel for the applicant argues that the learned Judge, in the orders quoted above, have granted bail on the basis that quantity of poppy husk etc. recovered from the accused was of small quantity like 10 kgs of poppy husk etc. and also that the accused had already undergone about 7 months to 2 years of sentence in a particular case and in some cases where their appeals were not likely to be heard for a considerable time. He urges that the present applicant is also entitled to bail as he has already undergone about 14 months imprisonment and 11 kgs of poppy husk was recovered from him.

The learned counsel for the applicant further urges that there is every danger of implanting such a small quantity of poppy husk by the police and that fact may also be taken into consideration while granting bail to the accused.

The argument of the learned counsel for the applicant looks to be tempting but without any force. Quantity of the incriminating article taken from the possession of the accused or the time spent by him in jail before the trial or after the conviction, are not the basis given in the Act for releasing the accused on bail.

In my considered view the hands of the High Court are tight in granting bail to the accusedapplicants on such grounds without taking into consideration the mandatory provisions of Section 37 of the Act and it is neither legal nor desirable to ignore the specific provisions of Section 37 of the Act, which has been provided under this Special Act. The Apex Court has also clearly held in the Narcotic Control Bureau''s case (supra) that the powers of the High Court to grant bail under Section 439 Cr.P.C. are subject to the limitations contained in the amended Section 37 of the 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.

In view of my discussion made above, the present bail application fails and is dismissed. Resultantly, the bail is refused to the applicant.