Vinod Kumar Sood vs State of Haryana

H.S. Brar, J.

This Criminal Miscellaneous Application has been filed by the petitioner under Section 439 of the Code of Criminal Procedure, for the grant of bail in case First Information Report No. 97, dated July 26, 1991, Police Station, Pinjore, District Ambala under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Narcotic Act).

It is alleged in the First Information Report that the petitioner was found in possession of 1 kg. and 150 gms. opium. A case was, thus, registered against him under Section 18 of the Narcotic Act. The petitioner moved an application for bail before the learned Additional Sessions Judge, Ambala, which was dismissed by him vide order, dated August 6, 1991. Feeling aggrieved, Vinod Kumar petitioner has approached this Court through the present petition for grant of bail.

The learned counsel for the petitioner submitted that the opium has been planted on the petitioner due to the enmity of Haripal Walia, Assistant Sub Inspector of Police Station, Pinjore with the petitioner. He further says that the mandatory provisions of the Narcotic Act have not been complied with he is neither a habitual offender nor is a previous convict and as such he may be granted bail, as there is no likelihood of the accusedpetitioner of absconding and tampering with the prosecution evidences and he shall not misuse the concession of bail. He has cited Amrit Singh v. The State of Haryana, 1990(2) Recent Criminal Reports 525 : 1990 (1) C.L.R. 437. However, these questions of fact can be gone into only at the time of trial. Compliance or non compliance of Section 50 of the Narcotic Act will also have to be determined at the time of trial. The observations in Amrit Singh''s case (supra) are of no avail to the petitioner, as the Narcotic Act is a special enactment and section 37 of the said Act restricts the powers of the High Court to grant bail except when the conditions prescribed under that section are fulfilled. The conditions prescribed under Section 37 are as under :

"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 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 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.

xxx, xx, xx, xx"

Section 37 as amended 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 were satisfied (For reference, see

Narcotics Control Bureau v. Kishan Lal and others, 1991(1) Recent Criminal Reports 338 : AIR 1991 S.C. 558). 4. The learned Deputy Advocate General, Haryana, has opposed the prayer for bail made by the learned counsel for the petitioner.

After hearing the learned counsel for the parties, I am not inclined to grant bail to the petitioners, as I am not satisfied from the facts of this case that there are reasonable grounds for believing that the petitioner is not guilty of offence under Section 18 of the Narcotic Act. I also do not see any reasonable ground for believing that the petitioner is not likely to commit such offence while on bail. The petition is accordingly dismissed.