State Of Manipur vs Arif Khan And Others

M.V. Muralidaran, J

Aggrieved by granting of bail in Criminal Miscellaneous (Bail) Case No.2 of 2018 dated 16.02.2018 on the file of the Special Judge (ND & PS), Bishnupur to the first respondent/accused viz., Arif Khan @ Arif, the State has preferred the present Criminal Revision Petition.

The wife of the first respondent/accused viz., Talsima Bibi has filed Criminal Miscellaneous (Bail) Case No.2 of 2018 before the Learned Special Court (ND & PS), Bishupur under Section 439 of Cr.P.C. read with Section 37 of ND & PS Act seeking bail with regard to F.I.R. No.94(12)2017 registered under Section 21(C) of ND & PS Act on the file of the Respondent MRG Police Station.

By order dated 16.02.2018 impugned in this revision, the learned Special Judge granted bail to the accused on condition that he should furnish a P.R. Bond of Rs.50,000/- with two sureties of the like amount with a further condition that he should not hamper the investigation. Assailing the said order, the State has preferred the present revision.

Heard the learned Public Prosecutor for the State and the learned counsel for the respondents.

The learned Public Prosecutor submitted that the learned Special Judge failed to consider the materials available in the case diary and bail objection report despite producing the same where clear prima facie case has been made out. He would submit that as per the materials available on record including the case diary and objection report, the accused revealed the name of one Seiboi from Churachandpur, who is the supplier of drugs without giving particulars and address. Therefore, the State objected the bail application for the reason that it requires identity of the said person and arrest him which can only be possible with the assistance of the accused person but the learned Special Judge failed to appreciate such plea.

The learned Public Prosecutor further submitted that the learned Special Judge has given too much emphasis to the medical report of the Medical Officer of the Jail while granting bail. In fact, the said medical report was not supported by any clinical report. Placing reliance upon the decision of the Hon'ble Supreme Court in Union of India v. Rattan Mallik alias Habul, reported in (2009) 2 SCC 624, the learned Public Prosecutor argued that mandatory conditions set out in Section 37(1)(b) of ND & PS Act have not been satisfied by the accused and while granting bail, the learned Special Judge has not looked into the said aspect.

Per contra, the learned counsel for the respondents submitted that the first respondent/accused was in judicial custody since 04.01.2018 and he is a sick and infirm person at the time of remand. He would submit that the first respondent/accused is quite innocent for the charge levelled against him and no drugs were recovered from his possession. Instead of arresting the right person who was possessing drugs, the arresting authority had arrested the first respondent. Moreover, the arresting authority has failed to comply the mandatory provisions of Section 42 and 50 of ND & PS Act and the secret information was not reduced into writing by the arresting authority as required under Section 42(1) of the ND & PS Act. The learned counsel further submitted that the learned Special Judge taking into consideration the fact that one Seiboi of Churachandpur, who had involved in the crime, was not arrested and that the health condition of the accused has been deteriorating day by day, granted bail. According to the learned counsel since the order of the learned Special Judge is a reasoned one, the same warrants no interference.

I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

The wife of the first respondent filed the bail application before the learned Special Judge stating that her husband, who has been shown as accused, is an infirm person and quite innocent of the charge levelled against him. No drugs were recovered from his possession and that her husband never committed any offence and the allegations levelled against him by the police are unbelievable and it has no basis.

On the other hand, it is the say of the prosecution that on his body search, 5 plastic packets containing contraband Narcotic drugs and Psychotropic substances were found in the inner pocket.

In the impugned order, while granting bail, the learned Special Judge observed as under:

"4. The case record of the F.I.R Case revealed that the accused person, Md.Arip Khan @ Arif was interrogated thoroughly. He denied the charges levelled against him. The present petitioner is the wife of the accused person. Medical Report indicates that the said accused person has been given constant medical treatment at Manipur Central Jail Hospital as well as at JNIMS, Porompat for his ailment. However, his health condition has no improvement. The M.O., M.C.J., Sajiwa advised for medical treatment outside the Jail in a well equipped Hospital. From the case record, it appears that the accused person has no antecedent. It is the facts of the case that the accused has a settled life having his wife and his family members. The I.O. states that other accused persons are required to be arrested in connection with the F.I.R. Case. In the case record it appears that one Mr. Seiboi of Churachandpur is involved in the present F.I.R. He is not arrested till date while the present accused has been in jail and his health conditions has been deteriorated day today."

The aforesaid observation of the learned Special Judge appears to be quite reasonable for the reason that the first respondent/accused was arrested on 29.12.2017 and he was in jail for almost one and half years. Further, since the health condition of the first respondent/accused has been deteriorating, his wife moved the bail application based on the medical advice given by the Medical Officer of Manipur Central Jail Hospital that the accused required treatment outside the jail in a well equipped hospital. Taking into consideration the health condition of the accused and also taking note of the fact that the accused has no antecedent, the learned Special Judge granted bail to the first respondent/accused imposing certain conditions.

In Rattan Mailk, supra, the Hon'ble Supreme Court held:

"9. The broad principles which should weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application.

As already noted, in the present case, the respondent has been convicted and sentenced for offences under the NDPS Act and therefore, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for offences under the Indian Penal Code, 1860 the relevant provision in the said special statute in this regard had to be kept in view.

Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29th May, 1989 with further amendment by Act 9 of 2001 reads as follows:

"37. 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 offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity 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 sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (12 of 1974), or any other law for the time being in force on granting of bail."

It is plain from a bare reading of the non-obstante clause in the Section and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".

The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [Vide Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.

Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are : (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Indian Penal Code, 1860 etc. but are not sufficient to satisfy the mandatory requirements as stipulated in subclause (b) of sub-section (1) of Section 37 of the NDPS Act.

Merely because, according to the Ld. Judge, nothing was found from the possession of the respondent, it could not be said at this stage that the respondent was not guilty of the offences for which he had been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the Ld. Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Section 37 were not brought to the notice of the learned Judge.

Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained. Accordingly, the appeal is allowed and the matter is remitted back to the High Court for fresh consideration of the application filed by the respondent for suspension of sentence and for granting of bail, keeping in view the parameters of Section 37 of the NDPS Act, enumerated above. We further direct that the bail application shall be taken up for consideration only after the respondent surrenders to custody. The respondent is directed to surrender to custody within two weeks of the date of this order, failing which the High Court will take appropriate steps for his arrest.

The appeal stands disposed of accordingly."

This Court is obliged to follow the broad principles enunciated by the Hon'ble Supreme Court in the above cited case. As stated supra, the learned Special Judge granted bail to the first respondent only on medical grounds that the health condition of the first respondent/accused has been deteriorating day-by-day. Such finding of the learned Special Judge is based upon the medical report produced before him. The prosecution has failed to produce any record before the learned Special Judge or before this Court to show that the first respondent/accused was hale and healthy and if he released, he would indulge in crime. The ground on which the first respondent/accused was enlarged on bail is a reasonable one.

In Rattan Mallik, supra, the accused person was convicted and sentenced to undergo ten years of rigorous imprisonment and to pay fine of Rs.1 lakh for the offence under Section 27-A of ND & PS Act and to undergo rigorous imprisonment for ten years and to pay fine of Rs.1 lakh under Section 29 of the ND & PS Act. Pending appeal, the accused therein moved an application to suspend the sentence before the High Court and the High Court granted bail with condition. Challenging the same, the State preferred appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court, set aside the order of the High Court. The factual matrix of the present case is entirely different. Therefore, the decision of the Hon'ble Supreme Court in Rattan Mallik, supra, cited by the learned Public Prosecutor is not helpful to the State in the facts and circumstances of the case.

In the instant case, the trial has not commenced and the alleged possession of drugs has been denied by the first respondent/accused. Moreover, the health condition of the accused has been deteriorating day-by-day, which was supported by the medical report. Therefore, this Court is of the view that the reason given by the learned Special Judge for granting bail to the first respondent/accused appears is quite reasonable and acceptable. Further, the State has failed to produce any adverse remarks on the first respondent/accused. Considering the health condition of the first respondent/accused and based on the medical report of the Doctors attached to Manipur Central Jail, the learned Special Judge granted the bail. In view of the above discussion, this Court finds no infirmity in the order of the learned Special Judge in granting bail to the first respondent/accused. No valid grounds have been made out to interfere with the order of the learned Special Judge and the Criminal Revision Petition is Iiable to be dismissed.

Accordingly, the Criminal Revision Petition is dismissed.