Superintendent, Narcotics Control Bureau, South Zone, Madras vs Selvarajah

One S. Selvarajah, S/o. Thiru Selliah, aged 30 years, a Sri Lankan national was stated to be residing at No. 16, VI Street, Lakshmipuram,

Thiruvanmiyur, Madras 41. He, it is said, has gained entry into Indian soil by illegal means by crossing the shore by means of a country-boat or

Kattamaram.

Credible information was stated to have been received by the officers of the Narcotics Control Bureau, Madras as to his having been involved

in trafficking Narcotic drug. Pursuant to receipt of the same, officers of the bureau proceeded to Thiruvanmiyur Bus Terminus on 24-1-1990 at

about 7 a.m. and found him there waiting for the bus. He was carrying with him a packet packed with polythene cover.

On examination of the said packet, in the presence of independent witnesses, the officers noticed a white and violet colour cardboard box with

designs wrapped with brown paper inside the polythene cover. On examination of the cardboard box, they found assorted sweet-meat in it. After

the removal of the sheets, they noticed brown power packed in polythene cover kept concealed in between two layers of the bottom portion of the

cardboard box. The polythene cover containing brown powder was removed and it weighed one kilogram. He was also in possession of an air

ticket purchased in favour of one Nithya Bawan for his journey to colombo by Air Lanka flight. Under a reasonable belief that the brown powder

was heroin, the officers seized the same under a mahazar. They also seized the card-board sweet box and the air ticket.

On interrogation, he was stated to have given a voluntary statement that one Kumar, a Sri Lankan residing at Bombay gave him the heroin in the

box and he transported the same to Madras for a commission of Rs. 1,500/-. The value of heroin seized, it is claimed, is about a lakh of rupees in

Indian market, and both several lakhs of rupees at International Market. He also claimed to have stated that the said heroin was to be smuggled to

Colombo by Nithya Bawan on 24-1-1990 by Air Lanka flight, leaving Madras at 10.15 a.m. as per the instructions of his friend Mr. Kumar.

He was arrested and produced before the Additional Chief Metropolitan Magistrate, E.O. II, Madras for remand. He appeared to have not

complained of any ill-treatment before the said Magistrate at the time of his remand. Nor did he appear to have stated anything as to a confessional

statement having been extracted form him as a result of threat and coercion.

Further investigation revealed that he and his associates had committed an offence of being in possession, transport and trafficking in the heroin.

After completing the investigation, a complaint for alleged offences u/Ss. 18(c) and 21 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (in short ''the Act'', had been laid before the Additional Chief Metropolitan Magistrate (E.O. II) Madras, who after taking the same on his file

as P.R. Case, subsequently committed to Court of Session, Madras, which was numbered as S.C. No. 76 of 1990 on the file of the VI Additional

Sessions Judge, Madras.

It is at this stage, after unsuccessfully moved an application for bail, also filed Crl. M.P. No. 1117 of 1991 on the file of the VI Additional

Sessions Judge, Madras for similar relief, which in turn culminated in passing an order in his favour, in the sense of his being released on bail on his

executing a bond for Rs. 3,000/- (Rupees three thousands only) with two sureties each for a like sum to his satisfaction. Of course, this order had

been passed on merits after hearing both sides. It is this order granting bail that is now being challenged with a prayer for its cancellation.

Mr. P. Rajamanickam, learned Senior Counsel appearing for the Narcotics Control Bureau would seek to assail the order granting bail by

raising sole and lone ground of attack, viz., though learned Sessions Judge, who passed the impugned order granting bail, is having judicial

discretion to pass an order granting or refusing bail to persons accused of offences under the Act, yet it cannot be stated that the discretion so

vested is unfettered; but definitely to be exercised within the circumscribed limits, as had been specifically provided for by the salient provisions

adumbrated u/S. 37 of the Act and the case on hand is a glaring instance pointing out the misuse or abuse of such a discretion, smacking of judicial

impropriety, that too, at the level of an Officer in the cadre of personnel not lower than that of a District and Sessions Judge.

Learned Counsel appearing for the respondent-accused would however repel such a submission.

An offence under the Act is too serious and stringent provisions had been made for release of a person accused of such an offence on bail u/S.

37 of the said Act. The section itself starts with a non obstante clause by stating that ''Notwithstanding anything contained in the Code of Criminal

Procedure, 1973'', which would be indicating that the provisions of this Act and this Act alone will be made applicable in the matter of grant of bail

to persons accused of offences under this Act.

Certain primordial requisites as adumbrated in the section have to be complied with before even bail is granted to the persons accused of

offences under this Act. They are :-

(1) Consideration of bail for persons accused of offences under this Act is not permissible without giving notice to the Public Prosecutor;

(2) A finding has to be recorded as to the existence or otherwise of the prima facie materials as to the commission of an offence under this Act;

and

(3) An additional finding is also required to be made as to the possibility or otherwise of the person accused of an offence under this Act indulging

in any such offence in the near future.

Pertinent it is to mention here that on the face of the use of the word ''and'', a conjunctive conjunction connecting the second and the third

primordial requisites, as referred to above, it goes without saying that a positive finding having been given on the aspect of the existence of a prima

facie case and the potentiality of the indulgence in committing such an offence in future by the person accused on an offence, the grant of bail was

rather inconceivable by the Court, on the face of the mandatory provisions adumbrated therein, rejecting bail in such circumstances.

An occasion arose before the apex of the Judicial Administration of this country in Criminal Appeal Nos. 810 and 811 of 1989 (Narcotic

Control Bureau v. Bishan Lal) to consider the question of powers of Court in the matter of grant of bail u/S. 37 of the Act and their Lordships said

thus :

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 S. 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 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 S. 439, Cr.P.C. and S. 37 of the NDPS Act S. 37 prevails. In this context S. 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.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but

subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with

such offences.

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 :-

The dominant purpose in 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, S. 37 of the NDPS Act 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 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 S. 37 of

the NDPS Act.

In the backdrop and setting of the proposition of law laid down by the Supreme Court, let me now make an endeavour to sift the materials on

record to find out the existence or otherwise of compelling or impelling circumstances requiring the impugned order granting bail to be cancelled or

allowed to remain as it is, in the facts and circumstances of the case.

There is no pale of controversy that the respondent-accused is a Sri Lankan national having no moors or roots in Indian soil. He, it is stated,

has gained entry into Indian soil by clandestine method of crossing the shores using the country boat or Kattamaram. Another signal factor to be

taken note of is that he has crossed the frontiers of youth and is at the verge of manhood, aged 30 years, not having any sort of avocation to his

credit so as to eke out his livelihood, who was said to have been caught by the personnel of Narcotics Control Bureau on the date of the

occurrence, as referred to above, whilst he was in custody and possession of one kilogram of heroin powder kept concealed in a sweetmeat box

having made all preparation for such a contraband to be smuggled out of India through the medium of his associate Nithya Bawan for whom an air

ticket was found traceable in his possession. His clandestine possession, transport and trafficking in the contraband, it is said, were found

perceived by the authorities from the voluntary statement given by him. Such a statement, it is further said, was not at all denied at the time of his

remand by making any submission before learned Magistrate that it was nothing but the resultant product of threat or coercion. Such a statement is

prima facie evidence of his clandestine possession, transport and trafficking in heroin. The manner and method by which he attempted to smuggle

the contraband out of this country also suggest the dextrous skill he possessed in such smuggling operations.

The box containing the heroin powder was packed in such a fashion as to make it appear that it was nothing but a cardboard box containing

sweetmeat to be taken to the other shore and offered to a friend or a relation in the course of extending usual courtesies. The fact that he was not

at all employed and having no moorings in Indian soil is suggestive of the fact that he could have been dealing in smuggling out of Indian soil such

contraband for a profit or commission from which he was able to eke out his livelihood. From his having been caught for the first time in such an

act, it cannot be stated, for the reasons as aforesaid, he was not having any dealing in such transactions. From the situation in which the respondent

was placed in his life, it is but legitimate to infer that he could have been dealing in such transaction for quite sometime past and by crook of fate, he

was caught red-handed on the day of occurrence. For a person like him to have found away for earning money with ease and grace by revelling in

such transaction, the potentiality of his indulging in such activities in the near future cannot be ruled out of consideration. In this view of the matter,

the primordial requisites of there being reasonable grounds for believing that he had been involved the commission of an offence of being in

possession, transport and trafficking in heroin and the potentiality of his indulging in such acts in future was rather imminent - the impugned order

granting bail to him is rather inconceivable.

The reasonings as given by learned Sessions Judge in his order as to the imminent possibility of his not indulging in such activities in the near

future appeared to stem out of fathom of imagination not having any legs to stand on the reality of the situation. The reasoning or the base for

arriving at such a conclusion by learned Sessions Judge on that aspect of the matter cannot at all be given any judicial recognition. If that part of the

order of learned Sessions Judge is rendered to be perverse, it goes without saying that both the primordial requisites for rejection of bail to the

respondent could be stated to have been present in the case on hand, as earlier stated, leaving no discretion for learned Sessions Judge to pass any

order granting bail.

Learned Session Judge also did not appear to have taken into consideration the fact that the respondent entered into Indian soil by illegal

means and by the grant of bail to such a person, especially in a heinous offence as the one he was accused of here, entitling the minimum sentence

of ten years and a fine of one lakh of rupees, there is every likelihood of his fleeing from justice by the same illegal means to his country causing

prejudice to the cause of justice.

For the reasons as above, I feel impelled to cancel the impugned order granting bail to the respondent and direct him to be arrested and

committed to custody forthwith.

The petition is ordered accordingly.

Order accordingly.