Ram Dayal Koli vs State

S.K. Dubey, J.

By this petition u/s 439, Criminal Procedure, Code, the Petitioner, who was arrested on 8-8-1991 for an offence u/s 8/18 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (for short, the ''NDPS Act''), as 5 kg. 100 gm. of opium was seized from his possession, has prayed for his release on bail.

Shri R. R. Sharma, counsel for the Petitioner, placing reliance on a decision of this Court in Mari Appa v. State of M. P. 1991 JLJ 415, contended that because of non-compliance of Section 50 of the NDPS Act, the Petitioner is entitled for bail, as there are reasonable grounds for believing that the accused is not guilty of the offence charged.

On a careful consideration, I am not satisfied that the ground is available to the Petitioner. On going through the statement of the Petitioner and the seizure memo, it is clear that the Petitioner did not exercise the option of requiring the duly authorised officer to take him for search and arrest without unnecessary delay to the nearest Gazetted Officer of the Departments mentioned in Section 42 or to the nearest Magistrate.

It was next contended that the Petitioner under proviso (a) to Section 167(2), Cr. P. C., has acquired statutory right to be released on bail on default of the prosecution in not filing the charge-sheet withing the prescribed period, and that right being absolute as it is a legislative command and not Court''s discretion, the Petitioner is entitled for bail. Reliance was placed on two decisions of the apex Court in Raghubir Singh and Others Vs. State of Bihar, and Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, case.

A decision of this Court in case of Bhavarsingh v. State of M. P. 1990 JLJ 193, was also pressed into service, wherein this Court has taken the view that where in relation to offences falling within the description given in Section 37 of the NDPS Act, the prosecution does not oppose the application for bail, the Court by virtue of Section 4(2) of Cr. P. C., is free to deal with the matter under relevant provision of the Code, applying the general principles governing the matter of bail. However, where the prayer for bail is opposed, S. 37 of the NDPS Act makes it obligatory on the Court to ensure that the conditions laid down therein are fulfilled.

Shri N. P. Mittal, Counsel appearing for the Narcotics Central Bureau, contended that bail under the NDPS Act can be granted only on the grounds mentioned in S. 37, Sub-section (1), subject to such limitations as may have been provided under the Cr. P. C., or any other law for the time being in force on granting of bail. The proviso (a) to S. 167(2) is not a limitation for the purpose of grant of bail, but the non-compliance of which enables the accused to be released on bail. Counsel took this Court through the preamble and Sections 32-A, 33, 36, 36-A, 37, 51, 52, 57, of the NDPS Act and, placing reliance on a recent decision of the apex Court in case of Kishan Lal AIR 1991 SCW 339, submitted that it is clear that by virtue of S. 4(2) of Cr. P. C., offences under the NDPS Act are investigated, inquired into, tried and otherwise dealt with in accordance with the provisions contained in Cr. P. C., but the powers under Cr. P. C. are subject to the NDPS Act, which is a special enactment; hence, the Petitioner, as of right, is not entitled to bail in default of not filing the charge-sheet within 90 days.

In Kishanlal''s case (supra) bail was sought on the grounds that the accused is entitled to be released on bail u/s 167(2), as the charge-sheet was filed at a belated stage, and that the accused was ill. A learned Single Judge referred the matter to a Division Bench of Delhi High Court, the Division Bench while granting bail, held that the limitations placed on the special Court u/s 37(2) cannot be read as fetters on the High Court in exercise of powers u/s 439, Cr. P. C. for granting bail. On appeal, the Supreme Court after considering the preamble and the various provisions of the NDPS Act observed in para 6:

Section 37 as amended starts with a non-obstante Clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr P. C. regarding bail, in our view, it cannot be held that the High Court''s powers to grant bail u/s 439, Cr. P. C., are not subject to the limitation mentioned u/s 37 of NDPS Act. The non-obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr. P. C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4, Cr. P. C. may be noted which reads thus:

Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code (45 of 1860), shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr. P. C. should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In Lt.-Col. Prithi Pal Singh Bedi and Others Vs. Union of India (UOI) and Others, regarding the mode of interpretation the Supreme Court observed as follows at page 1419 of AIR:

The dominant purpose of construing a statute is to ascertain the intention of parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity." As already noted, Section 37 of NDPS Act starts with a non-obstante clause stating that Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of the offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of Cr P. C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.

(Emphasis supplied)

The apex Court after observing so in para 6, referred and considered its earlier decisions in Usmanbhai Dawoodbhai Memon and Others Vs. State of Gujarat, case, a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act'') and Balchand Jain Vs. State of Madhya Pradesh, case which was a case under the Defence and Internal Security of India Rules, 1971 (DIR'') for clarifying the law, and held that the powers of the High Court to grant bail u/s 439 are subject to the limitations contained in the amended Section 37 of the NDPS 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.

It is true, u/s 36-A the special Court has powers to exercise its jurisdiction as provided u/s 167, Cr. P. C. But that provision must be understood in its context, in as much as, S. 36-A also begins with the non-obstante clause, namely, "Notwithstanding anything contained in the Code of Criminal Procedure, 1973". By reading the two provisions together, it becomes clear that whatever be the provisions of the Cr. P. C., it is only to the extent that it is provided under the NDPS Act, the Special Court can exercise such powers. The intention of the Legislature is to see that persons charged under the NDPS Act are severely dealt with and are not ordinarily allowed to be released on bail. By necessary implication it must be held that to that extent there is no application of the provisions of Cr. P. C. to S. 37(2) of the NDPS Act.

As rightly contended by Shri Mittal, the word ''limitation'' occurring in S. 37(2) is of importance. Bail can be granted only on the grounds mentioned u/s 37 (1) and subject to such limitations as may have been provided under the Code of Criminal Procedure or any other law for the time being in force on granting bail. The proviso (a) to Sub-section (2) of Section 167, Cr. P. C. is not a limitation for the purpose of grant of bail but the default of not filing the charge-sheet within ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, enables the accused to be released on bail. The Bombay High Court in case of Mrs. Shasibala Nair v. Intelligence Officer (1990) 1 EFR 244., and Jammu & Kashmir High Court in case of Darshan Singh v. Superintendent, Customs 1990 (1) Crimes 607, have taken the view that the accused would not be entitled for bail on the default of the prosecution in not filing the charge-sheet within 90 days.

Though a Division Bench of Delhi High Court in case of Powell Nwawa Ogichi 1986 (3). Crimes 577, relied by Shri Sharma has taken a different view, in view of the clarification of law by the apex Court in case of Kishan Lal (supra), that the High Court''s power to grant bail u/s 439, Cr. P. C. are subject to the limitations contained in the amede i Section 37 of the NDPS 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, the Petitioner would not be entitled for bail under any provision of Cr. P. C. unless a case is made out for bail u/s 37 of the NDPS Act.

Thus, the two decisions of the apex Court in Raghuvir Singh v. State of Bihar and Rajnikant''s case (supra) one the decision of this Court in Bhavarsingh v. State of M. P. (supra) are of no help to the Petitioner.

As discussed earlier, the Petitioner on opposition of the application for bail has failed to satisfy that there are reasonable grounds for believing that he is not guilty of such offences. Hence, the application is dismissed.