Union of India vs Zaheer

D. K. Trivedi, J.—Heard the learned counsel for the Union of India and Shri A.R. Siddiqui counsel for the opposite party.

The present application has been moved by the Union of India for cancellation of the bail granted on 21.5 1996 by the VI Additional Sessions Judge, Barabanki. The contention of the learned counsel for the petitioner is that in the instant case a complaint was filed and thereafter notices were issued to the opposite party by the Court and it is also alleged that the opposite party was not available and was absconding. The Court finally issued nonbailable warrants as well as initialed proceedings under Sections 82/83, Cr. P.C. against the opposite parties but the proceedings under Section, 82/83, Cr. P.C. have been quashed by this Court. The Court also issued bailable warrants against the opposite party for appearance in court. The opposite party also moved some petition under Section 482, Cr. P.C. but the same was also dismissed with a direction to the Court concerned that in case the opposite party appears before the Court concerned then they shall be dealt with in accordance with law. The petitioner appeared before the Court on 21.5 1996 and moved an application with a prayer that the appearance of the applicant be noted and the applicant be permitted to furnish his bail bonds. This application was moved on the ground that the Sessions Judge has issued bailable warrants against the opposite party. The learned Sessions Judge on the same day granted bail to the opposite party. From a perusal of the order itself it is evident that the learned D.G.C. (Civil) states that the opposite party be directed to furnish a copy of the bail application and thereafter he may be given some time and the bail application thereafter be listed for hearing. Inspite of this the bail of the opposite party was granted by the VI Additional Sessions Judge, Barabanki on the same day i.e. 2151996. Subsection (b) of Section 37 of the Narcotic Drugs and Psychotropic Substance Act, 1985 runs as under:

"(h) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act 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 (he Public Prosecutor oppose 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."

The abovementioned provisions of the Narcotic Drugs and Psychotropic Substances Act, itself show that an accused person cannot be released on bail unless and until an opportunity is given to the Public Prosecutor to oppose the bail application and further the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any other offence while on bail. As pointed out above, the opposite party appeared before the Court on 2151996 and on line same day he moved an application para that he may be permitted to furnish bailbonds and on the same day he was directed to be released by the trial Judge. The learned counsel for the opposite party pointed out that the alleged application cannot be said to be bail application as the prayer made in that application itself shows the opposite party prayed for permission to furnish bailbonds and this shows that bail had already been granted or presumed to be granted to him. However, without expressing any opinion on any of the other grounds, I am of the view that the present order of bail dated 2151996 is, on the face of it, illegal as the same was passed against the provisions of the Narcotic Drugs and Psychoiropic Substances Act. Section 37 of the N.D.P.S. Act clearly provides an opportunity to the Public Prosecutor and the same be presumed to be a reasonable opportunity and the same should not be only on paper. In the in slant case as pointed out above, inspire of the objections raised by the D.G.C. (Criminal) that he may be given a copy of the bail application and some opportunity. The Court below committed an error in not allowing the said opportunity to the D.G.C. (Criminal). It is also strange thing that an accused involved under the N.D.P.C. Act and was challaned under Section 8/21 of the N.D.P.C. Act for recovery of Heroin was released on the same day without even affording any opportunity lo the D.G.C. (Criminal). H is pointed out by the learned counsel for the opposite party that from the possession of the opposite party no recovery has been made but it is not disputed that he was challaned in a case where it is said that Heroin was recovered. The provisions of Section 37 of the N.D.P.S. Act are mandatory and it cannot be violated in such a way as mentioned above.

In the case of State of Punjab v. Dharminder Kumar alias Kaka, 1996(1) EFR 393 the Hon''ble Supreme Court cancelled the bail because the same was granted in violation of the provision of Section 37 of the N.D.P.S. Act.

In these circumstances the bail granted to the opposite party by order dated 2151996 is hereby cancelled. Lei nonbailable warrants be issued by the Chief Judicial Magistrate, concerned for the arrest of the opposite party, if he fails to surrender in Court within 15 days from today. However, it is made clear that the accused shall be free to move an application again before the competent Court and the said composite Court will then decide the said application on merit after giving an opportunity to the D.G.C. (Criminal) in accordance with law and the said Court will not be prejudiced by the order passed by this Court. Application allowed.