Ramakanta Turuk@Harijan vs State Of Odisha

B.P. Routray, J

The petitioner in this application under Section 439 Cr.P.C. has prayed to release him on default bail.

The facts of this case in short are that, five accused persons were arrested while illegally transporting the contraband ganja (cannabis) weighing

411kg. 800grams in two vehicles, by the Sub-Inspector of Police of Jaypore Sadar Police Station pertaining to F.I.R.No.95 dated 11.6.2019.

Accordingly, T.R.No.34 of 2019 was registered before the learned Sessions Judge-cum-Special Judge, Koraput-Jeypore for commission of offences

under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the N.D.P.S. Actâ€). In the said

case, the present petitioner was taken to custody on remand on 6.1.2020 for the aforestated offences read with Section 29 of the N.D.P.S. Act. On

6.7.2020 after completion of 180 days of custody, the petitioner filed an application before the learned Sessions Judge-cum-Special Judge, Koraput-

Jeypore to release him on default bail in terms of Section 167(2) of the Code of Criminal Procedure (in short “the Cr.P.Câ€). The said prayer of

the petitioner was rejected by the learned Sessions Judge-cum-Special Judge on the same day on the ground that Section 37 of the N.D.P.S. Act

overrides the provision of the Cr.P.C. and the accused is not thus entitled to bail under Section 167(2).

On the next day i.e., on 7.7.2020, chargsheet no.165 dated 1.7.2020 was filed against the present petitioner before the learned Sessions Judge-cum-

Special Judge and consequently cognizance for the aforesaid offences was taken in respect of the accused.

Assailing the order dated 6.7.2020 passed by the Sessions Judge-cum-Special Judge, it is submitted by the petitioner that law is well settled on the

point that right to bail under Section 167(2) of the Cr.P.C. is indefeasible and the limitations under Section 37(1) does not affect the same.

In the above context, the factual aspects regarding the period of custody of the petitioner and non-submission of challan within 180 days, are not

disputed by the parties. Thus, the only point falls for determination is whether the embargo under Section 37(1)(b) of the N.D.P.S.Act would stand as

a bar upon right of the accused for bail under Section 167(2) of the Cr.P.C.

Section 4(2) of the Cr.P.C. prescribes that all offences under any law other than the Indian Penal Code shall be investigated, tried and otherwise

dealt in accordance with the provisions of the Cr.P.C., but subject to such enactment providing otherwise. Section 167 of the Cr.P.C. authorizes the

Court before whom the accused is produced for his detention pending completion of investigation subject to the maximum limit specified, and by

operation of Section 36-A(4) of the N.D.P.S.Act, the maximum period for the purpose is extended up to 180 days (or for more days for specific

reasons). Section 37 of the N.D.P.S. Act stipulates certain conditions in the matter concerning bail of the accused relating to specific offences

including for offences involving commercial quantity. It is further prescribed under sub-section 2 of Section 37 that those limitations prescribed under

clause (b) of sub-Section (1) are in addition to the limitations given under the Cr.P.C. on grant of bail. Therefore, it is clear that, the provisions of

Section 37(1)(b) of the N.D.P.S. Act are not in exclusion of the provisions of Cr.P.C. on grant of bail. The provisions contained in sub-section (3) of

Section 36-A and Section 51 of the N.D.P.S. Act makes the position clearer. Further the express reference to sub-section 2 of Section 167 of the

Cr.P.C. made in sub-section 4 of Section 36-A and the provisions contained in sub-section 2 of Section 37, removes all doubts for application of

provision under sub-section 2 of Section 167 of the Cr.P.C. in the matter of right to bail of the accused on default by the investigating

agency/prosecution concerning offences under the N.D.P.S. Act. Therefore, the right to bail as per Section 167(2) of the Cr.P.C. is not affected by

the mandate of Section 37(1)(b) of N.D.P.S.Act.

The Hon’ble Supreme Court while discussing and interpreting different provisions of the N.D.P.S. Act and Cr.P.C. have settled the law that

there is no such provision under the N.D.P.S. Act to indicate any contrary intention in order to exclude the application of proviso to sub-section 2 of

Section 167 of the Cr.P.C. It is held in the said case, reported in (1995) 4 SCC 190 (Union of India Vrs. Thamisharasi and others) that ;

“12. The limitation on the power to release on bail in Section 437 Cr.P.C. is in the nature of a restriction on that power, if reasonable grounds exist

for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the N.D.P.S. Act is in the nature of a condition

precedent for the exercise of that power, so that, the accused shall not be released on bail unless the Court is satisfied that there are reasonable

grounds to believe that he is not guilty. Under Section 437 Cr.P.C., it is for the prosecution to show the existence of reasonable grounds to support the

belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 N.D.P.S. Act, it is the accused who must

show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This

appears to be the distinction between the two provisions which makes Section 37 of the N.D.P.S. Act more stringent.

13.Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the

corresponding provisions in the Code and imposes limitations on granting of bail in addition to the limitations under the Code of Criminal Procedure as

expressly provided in sub-section (2) of Section 37. These limitations on granting of bail specified in sub-section (1) of Section 37 are in addition to the

limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding

the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. which operates in a different field relating to the total period of custody of the

accused permissible during investigation.â€​

In the present case at hand, the offence involves commercial quantity. It is seen from the order of the learned Sessions Judge-cum-Special Judge

that he relied upon a decision of the Gauhati High Court, reported in 1994 Crl.L.J. 213 (Sankar Singh Vrs. State of Assam )to reach his reasoning that

provisions of Section 37 of the N.D.P.S. Act override the provisions of the Cr.P.C. But in view of the law pronounced by the Hon’ble Supreme

Court in the case stated above, the said decision of the Gauhati High Court has become inoperative and cannot be relied on. Further, the decision of

the Madras High Court in the case of Thamisharasi which differed from the said decision of the Gauhati High Court, the view of the Madras High

Court has been ultimately confirmed by the Hon’ble Supreme Court in the aforesaid case.

As stated earlier, since facts regarding period of custody of the petitioner and non-submission of final report within the stipulated period are not

disputed by both parties, the petitioner is certainly entitled for enlargement on default bail in terms of Section 167(2) of the Cr.P.C. and the limitations

under Section 37(1)(b) of the N.D.P.S.Act cannot operate as a bar for such release of the petitioner.

Accordingly, it is directed that the petitioner be released on bail by the learned Sessions Judge-cum-Special Judge, Koraput-Jeypore in T.R.No.34

of 2019 on such terms and conditions as the learned Sessions Judge-cum-Special Judge may deem fit and proper.

In the result, the bail application is allowed.