Union of India vs Mahesh Prasad

N.B. Asthana, J.—The opposite party cultivates opium on license from the applicant. Under Rule 13 of the Rules framed under the Act, the cultivator is required to produce during the course of harvesting, each days'' collection of opium from his crop for weighment before the Lambardar. The Lambardar is required to weigh such opium and make necessary entries in the records to be maintained by him. The Lambardar and the cultivator are required to attest the entries under their signature/thumb impression with date, showing the quantity of opium weighed on a particular day. The proper officer is required to conduct check weighment of the opium collected by the cultivators with reference to the entries in the Lambardar''s record and indicate his finding therein which shall be attested by him and the Lambardar under their signature with the date. The variations between the quantity of opium produced by the cultivator indicated in the Lambardar''s record and as found by the proper officer during his check, shall be inquired into by the proper officer in order to ascertain the liability of the cultivator for punishment under Section 19of the Act.

Section 19 of the Act provides for punishment for embezzlement of opium by cultivator and lays down that any cultivator, licensed to cultivate the opium poppy on account of the Central Government, embezzles or otherwise illegally disposes of the opium produced or any part thereof shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

The case of the applicant is that in all 4 Kgs. 800 Grams of opium was extracted by the opposite party during the period 83 1996 to 1631996. However, only 3 Kg. 500 gms. opium was handed over to the proper officer which was less than 1 Kg. 300 gms. of opium extracted by him. Search was made of the premises of the opposite party, upon which 750 gms. of opium was recovered from his possession. Still the quantity remained short by 550 grams. He was thereupon arrested and produced before Special Judge/Sessions Judge, Barabanki who granted him bail for the offence in question on the ground that till the date of checking by the officers the accused had not surrendered his opium collection and as such no offence under Sections 8/18/19 of the Act has been made out. Aggrieved by it, the applicant has come to this Court for cancellation of the aforesaid bail.

Section 37 of the Act makes the offence under the Act to be cognizable and nonbailable. It lays down, inter alia, that notwithstandinganythingcontainedinthe Code of Criminal Procedure, 1973 no person accused of an offence punishable for a term of imprisonment of five years or more under the Act shall be released on bail unless 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 affiance while on bail.

In the instant case, the trial court has now here stated in the bail orders that it is satisfied that there are reasonable grounds for believing that the applicant is not guilty of the offence in question and, therefore, bail could not have been granted to him and on this very ground the cancellation of bail is sought.

Placing reliance upon Dolat Ram and others v. The State of Haryana, ACC 1995 (32) page 149 and State of U.P. v. Karunakar alias Deonath Tiwari, ACC 1994 (31) 189, it has been argued that the bail once granted could be cancelled only when very cogent and overwhelming circumstances exist. Some such instances given are interference or attempt to interference with the due. course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The argument is that as no such allegation has been made in the application moved for cancellation of bail, the bail once granted cannot be cancelled. It has also been argued in this connection that Section 32A of the Act has been declared to be ultra virus of the Constitution. It may be noted that there is no application of Section 32A of the Act in the instant case.

On behalf of the applicant, reliance has been placed upon a number of rulings. The first such ruling is Union of India v. Thamisharasi and others, ACC 1995 (32) 503, in which it was stated that 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 10 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.

In State of Punjab v. Dharminder Kumar alias Kaka, 1996 (1) EFR 483, the trial court granted bail to the accused in breach of Section 37 of the N.D.P.S. Act. The order granting bail stated that it cannot be said at this stage as to whether the accused is guilty of the offence or not and in these circumstances the trial court granted the bail and the High Court also confirmed the order granting bail. The Supreme Court was of the opinion that in the circumstances the order of trial court granting bail was prima fade illegal. The bail granted was accordingly cancelled.

In Bhagirath Rai v. Union of India and others, 1996 (1) EFR 483, the accused was granted bail ignoring the legal prohibition contained in Section 37 of the Act. The Supreme Court was of the opinion that this was sufficient for cancellation of bail.

In Narcotic Control Bureau v. Kishan Lal and others, 1991 ACC 162, it was said that Section 37 of the N.D.P.S. Act starts with a nonobstante 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 Section 37 of the N.D.P.S. Act. In view of the law aid down in this ruling, it cannot be argued that once bail has been granted, it can only be cancelled under the provisions of Cr. P.C. If the bail under the N.D.P.S. Act has been granted in violation of Section 37 of the Act, it can certainly be cancelled by a higher Court, it is not necessary that the application for cancellation of bail should have been moved first in the trial court.

In the instant case, the trial court has not considered Section 37 of the N.D.P.S. Act while granting bail and infect the bail has been granted in violation of the provisions of Section 37 of the Act. It is wrong to say on the part of the trial court that the opposite party has not yet finally deposited opium with the Narcotics Department. The Narcotics Department took delivery of the opium extracted by the opposite party. Even after search of the premises of the opposite party, the entire opium extracted by the opposite party could not be recovered. It cannot, therefore, be said that the opposite party has not yet finally deposited the opium. It was argued on behalf of the opposite party that the entire opium extracted by the opposite party has been surrendered. Annexure C. Al in this connection has been filed. It is, however, dated 321996. It does not cover the period faquestion. In view of the discussion made above, the opposite party was granted bail by the trial court in violation of the provisions of Section 37 of the N.D.P.S. Act. The opposite party should not have been released in the facts and circumstances of the case, on bail,

The application is allowed. The bail granted to the opposite party by the trial court is cancelled. The opposite party shall surrender before the trial court forthwith, failing which the trial court shall issue a nonbailable warrant of arrest and take all possible steps to get him apprehended and sent him to jail.

A copy of this order be sent within three days to the trial court.

Application allowed.