Raju vs State

R.C. Chopra, J.—The petitioner seeks bail u/s 439 of the Code of Criminal Procedure (hereinafter referred to as ''The Code'' only) read with Section 37 of the NDPS Act (hereinafter referred to as ''the Act'' only) in case FIR 9/2002 registered at P.S. Narcotic Branch under Sections 21, 25 and 61 of the Act. The prosecution case against the petitioner, briefly stated, is that on the basis of a secret information a raiding party was organised on 5.2.2002. At about 10.55 PM near Chanakya Cinema Petrol Pump, the petitioner was apprehended and 1.5 Kg of smack was recovered from him. A case was registered against him and after necessary investigations a challan was filed. A charge has already been framed against the petitioner and he is facing trial before the learned Special Judge, Delhi.

I have heard learned Counsel for the petitioner and learned Counsel for the State.

Learned Counsel for the petitioner has vehemently argued for release of the petitioner on bail. His first argument is that Section 37 of the Act does not stand in the way of the High Court exercising powers u/s 439 of the Code in view of Section 36A(3) of the Act which reads as under:-

"Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail u/s 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted u/s 36."

Learned Counsel submits that the powers of the High Court regarding bail u/s 439 of the Code have been specifically saved by Section 36A(3) referred to above. It is argued that applying Section 37 of the Act to a bail application moved before High Court would render Section 36A(3) of the Act otiose. It is submitted that the judgment of the Apex Court in the case of Narcotics Control Bureau Vs. Kishan Lal and others, is per-incuriam as the implications of Section 36A(3) of the Act were not considered and as such this judgement is not a binding precedent. Referring to the Commentaries on Constitutional Law of India by H.M. Seervai, 4th Edn. Vol. 3, page 2677 and a judgment of the Apex Court in Arnit Das Vs. State of Bihar, , it is submitted that a judgment of the Apex Court rendered in ignorance of the statutory provisions is not binding on any Court in India as the Courts are free to interpret the laws but as not free to overlook or disregard the laws. It is also argued that when a point is not consciously determined by a Court the Rule of sub-silentio comes into play and the judgment does not become a binding precedent. Learned Counsel relies upon the judgments of the Apex Court in Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, as well as Bal Chand Jain Vs. State of M.P. reported in AIR 1977 SC 366 to contend that the restrictions imposed by Section 37 of the Act are in regard to the powers of the Special Courts only and not the powers of the High Courts u/s 439 of the Code.

The second argument of learned Counsel for petitioner is that in all those cases where an accused can show that the case as set up by the prosecution is not free from doubts and he may get acquitted at the end of the trial, the High Court must exercise its powers u/s 439 of the Code in favour of releasing the accused on bail for the reason that if an accused cannot be convicted at the end because of doubts in regard to his guilt, he cannot be denied bail also and kept in custody only to await his acquittal. It is argued that the approach adopted by the Court at the final stage of determining the guilt or innocence of an accused has to be adopted at the stage of considering his bail also and as soon as it is shown that the accusations against him are not beyond the shadow of doubt, he must be granted bail and released. It is submitted that the circumstances relevant for the acquittal of the accused are relevant for grant of bail also.

Learned Counsel for the petitioner has pointed out that the prosecution case against the petitioner is full of holes in as much as the Investigating Officer was not present at the spot, the seals allegedly used by him on the case property were not with him and there were interpolations in the case diary also. It is submitted that the I.O SI Bhoop Singh could not be present at the spot between 12.20 AM to 3.15 AM during the night of 5th and 6th February 2002 because at 12.55 AM his statement was being recorded in FIR 8/02 at PS Narcotics Branch, Kamla Market, Delhi which is at a distance of about 15 kms. from the spot. Regarding seals also it is submitted that the seal used for sealing the case property in FIR No. 8/02 was seal of SHO S.P. Kaushik and that very seal could not have been affixed in the present case also because in the earlier FIR No. 8/02 the seal was used between 5 and 6 PM and thereafter handed over to SI Bhoop Singh, who was a recovery witness and, therefore, the said seal was not available to SHO S.P. Kaushik. Regarding the seal of SI Bhoop Singh also, it is stated that he had handed over his seal to Head Constable Vijender Singh in case FIR 7/02 at about 3.00 PM on 5.2.2002 and as such his seal also was not available to him at the time of the alleged sealing of the present case property.

Learned Counsel for the State has controverted the arguments advanced by learned Counsel for the petitioner and has prayed that the bail application may be dismissed. It is submitted that the powers of the High Court to grant bail u/s 439 of the Code are circumscribed by the provisions of Section 37 of the Act and there are no grounds to hold that the Apex Court judgment in the case of Kishan Lal (supra) was per-incuriam. Learned Counsel for the State relies upon the judgements of the Apex Court in State of Madhya Pradesh Vs. Kajad, Union of India Vs. Ram Samujh and Another, and Union of India Vs. Mirajuddin reported in 1999 SCC (Crl.). 1057. In all these cases the Apex Court has categorically held that the mandate of Section 37 of the Act applies to the powers of the High Courts also u/s 439 of the Code. Learned Counsel for the State submits that Section 36A(3) merely saves the powers of the High Court regarding bails u/s 439 of the Code but does not override Section 37 of the Act which puts certain limits on those powers. He has further argued that in terms of Section 37 of the Act an accused charged with an offence under Sections 19, 24, 27A of the Act or for an offence involving commercial quantity cannot be ordered to be released on bail unless a finding is given that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Learned Counsel for State submits that I.O. will be in a position to explain about (the) his presence at the spot and use of seals in different cases when he is examined by the Trial Court. It is stated that Police Officers are permitted to have more than one seal.

After considering the submissions made by learned Counsel for the parties, this Court is of the considered view that a harmonious reading of Section 36A(3) of the Act and Section 37(2) thereof leave no rule for doubt that in spite of saving the powers of the High Court regarding bail u/s 439 of the Code by incorporating Section 36A(3) of the Act the legislature has put limitations on the powers to grant bail by introducing sub-clause (2) of Section 37 of the Act which says that "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 or any other law for the time being in force on granting of bail." This provision, therefore, categorically puts restrictions on the powers of the High Court u/s 439 of the Code by saying that the restrictions contained in Section 37(1)(b) are in addition to the limitations under the Code. It is true that in Kishan Lal''s Case (Supra) Section 36A(3) of the Act was not discussed threadbare but there was no need for doing so for the reason that sub clause (2) of Section 37 of the Act is more than clear in regard to limitations on the powers of the High Court while exercising powers u/s 439 of the Code. The Apex Court judgements in the case of State of Madhya Pradesh Vs. Kajad, Union of India Vs. Ram Samujh & Anr. and Union of India Vs. Mirajuddin (supra) say in no uncertain terms that the powers of the High Court are circumscribed by Section 37 of the Act. Thus the plea of learned Counsel for the petitioner that the limitations contained in Section 37 of the Act are applicable to Special Courts only and not to the High Courts is liable to be rejected.

The next contention of learned Counsel for the petitioner is that in case certain circumstances are brought before the Court, on the basis of which Court entertain doubt in regard to the truth of the prosecution case, the accused becomes entitled to bail as the benefit of every reasonable doubt in the prosecution case has to be given to him and if he can get acquitted, there is no reason why he cannot be released on bail on the basis of those doubts. It is contended that it would be travesty of law to hold that a person can be acquitted because of a doubt but cannot be granted bail on the basis thereof and he must face trial in custody only to get acquitted at the end. The argument appears to be attractive on the face of it but when examined threadbare, looses all its charm for the reason that Section 37(1)(b)(ii) of the Act specifically says that an accused involved in an offence described therein cannot be released on bail unless there are reasonable grounds for believing that he is not guilty of the offence with which he is charged-and further that he is not likely to commit any offence while on bail. While incorporating this provision, the legislature was fully conscious that for acquitting an accused a Court is not required to return a finding that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence again and he can be acquitted by merely giving him benefit of doubt. If the provisions for grant of bail to Drug Traffickers have been made so stringent there is a valid reason behind it and it is that Drug Trafficking is undermining the basic fibre of the society and is not only ruining and destroying young lives but is also introducing huge black money which is used for carrying out anti national and subversive activities in the country. The legislative intent is that after prosecution is given opportunity to lead evidence to establish its case, if there remains some doubt about the guilt of an accused, he may be given benefit thereof and acquitted but at the initial stage of trial without giving full opportunity to the prosecution to establish its case and explain the infirmities, if any, the accused should not get bail unless the Court finds that he is not guilty of such offence and he is not likely to commit any offence white on bail. This Court, therefore, is of the considered opinion that the stringent conditions introduced by the legislature in the matter of grant of bail to the accused involved in drug related offences were deliberate, with a holistic object and in national interest. Thus it should be clearly understood that for the offences to which Section 37(1)(b) of the Act applies getting bail may be difficult and getting acquittal easier because at the end of the trial the Court gets a complete picture of the case against an accused and may acquit him if it entertains a reasonable doubt about the truth of prosecution case. Hence it cannot be said that the Court can grant bail to an accused if there is a doubt about prosecution case. The Courts are under an obligation to return the findings as envisaged by Section 37 the Act if the accused is to be released on bail.

The doubts or holes as pointed out by learned Counsel for the petitioner, in regard to the presence of SI Bhoop Singh at the spot, the availability of the seals of SHO S.P. Kaushik and Bhoop Singh, SI and some interpolations in case diaries may create some doubt but the claim of prosecution is that it can explain these matters in the course of trial. The claim of prosecution is that Police Officers could and were actually having more than one seal and statement of Bhoop Singh, Sub Inspector was recorded at a different time. The possibility cannot be ruled out that the prosecution witnesses in the course of their statements before the Trial Court may be in a position to give proper explanations in regard to all these issues. In case they fail to do so the Trial Court shall be well within its rights to give benefit of doubt to the petitioner and acquit him but this Court is not in a position to release him on bail in view of the bar created by Section 37 of the Act as it is unable to record its satisfaction that there are reasonable grounds to believe that the petitioner is not guilty of the offence with which he has been charged and he is not likely to commit an offence while on bail. In view of the foregoing reasons, this Court is of the considered view that the petitioner from whom 1.5 kg., of smack was allegedly recovered, which was a commercial quantity, cannot be released on bail in view of the bar of Section 37 of the Act.

His application for bail, therefore, stands dismissed.