Control Bureau Vs. Dilip Pralhad Namade  Insc 180 (18 March 2004)
Raju & Arijit Pasayat
O R D
E R (Arising out of SLP (Crl.) No. 2783/2003) ARIJIT PASAYAT,J
of bail to the respondent by a learned Single judge of Bombay High Court is
questioned by the Narcotics Control Bureau (in short the "NCB"). The
respondent is facing trial for alleged commission of offences punishable under
Section 29 read with Sections 8(c),22,28 and 30 of the Narcotics Drugs and Psychotropic
Substances Act, 1985 (for short the 'NDPS Act'). The allegations against the
respondent Dilip Pralhad Namade (hereinafter referred to as `the accused') were
that he was involved in the manufacturing of mandrax tablets and he is the
person who has supplied the technical know how of preparation for the tablets.
of the appellant- Bureau , Mumbai Zonal Unit, got information that one Suresh Faturmal
Jain was travelling in a red Ford Escort car and was carrying 20,000 Mandrax
Tablets to be delivered to two persons at a particular place. Acting on the
information, two officers of the Bureau went to the vicinity of the place where
the tablets were to be delivered. Two persons were called to act as Panchas.
They found that there were three persons travelling in the car. The officers
searched the car and arrested all the three occupants. One of them were Suresh Futormal
Jain and others were Karakutti Karan Anthony and Rajeev Shirook. From the bags,
20 Kgm. of Mandrax Tablets were recovered. Statement of all the three accused
persons were recorded and on the basis of certain facts disclosed in the
statements, a search was taken up by the Officers and 650 Kgs. of chemicals
used for manufacturing Mandrax tablets were recovered. During the course of
investigation, other persons were also searched and enquiries were made.
case against the respondent-accused was that he was instrumental in helping the
other accused persons in setting up a plant and machinery for manufacture of Methaqualone
Powder and Mandrax Tablets. With the help of others, the respondent alongwith
accused No. 10 manufactured eleven lakhs Mandrax tablets on three occasions for
other accused persons. He had also visited the factory of accused No. 13 for
the purpose of procurement of the Mandrax Tableting Machineries etc.
application was filed by the respondent- accused, which was rejected on
27.8.2001 by the Special judge Subsequently an application was filed on
21.6.2002 before the Special Judge for direction to the prosecuting agency to
supply copies of certain documents purported to have been recovered from his
house. The Special Judge directed the prosecution to furnish the copies.
an application for bail was filed by the respondent-accused before the Bombay
High Court on 27.8.2002. By the Impugned order dated 19.12.2002 the High Court
granted bail to the respondent-accused primarily on the term that the direction
given by the Special Judge for supply of copies of documents was not complied
with, though the bail application was opposed.
support of the appeal Mr. L. Nageshwara Rao, learned Additional Solicitor
General submitted that while granting bail the provisions of Section 37 of the
Act were not kept in view. There is a prohibition on the grant of bail in terms
of Section 37 of the NDPS Act and only under the specified conditions bail can
be granted. Non-supply of documents pursuant to the court's order is not one of
the grounds on which bail can be granted. In fact the High Court recorded a
wrong conclusion by observing that the order was not complied with and there
was also no challenge to the order directing supply of documents. As a matter
of fact claiming privilege the Bureau had filed an application before the
Special Judge clearly indicating that it would not be in the interest of
justice to grant copies, and prayer was made to the Court that instead of
granting copies the accused, if he so desires, could inspect the documents in
presence of officials of the Bureau. That offer was not accepted by the accused
respondent. The Bureau wanted to avoid the possibility of any tampering with
the original documents and also further dissemination of the formula in public
and that is why inspection, as indicated above was offered. The accused having
not chosen to inspect the documents could not have made a grievance about
non-supply of copies or alleged non-compliance of the directions of the learned
contra Mr. E.C. Agrarwala, learned counsel appearing for the respondent-accused
submitted that stand taken by the appellant-Bureau is nothing but a camouflage
to hide its inaction and non-compliance with the orders of the Special Judge.
There was a specific direction for supply of copies and there is no ground
indicated to substantiate the claim of privilege. In any event, the order
granting bail was passed on 19.12.2002 and this Court was approached in May
2003 and in the meantime nearly 1= years have elapsed without any allegations
of the respondent-accused having misused his liberties. He submitted that in
two cases i.e. SLP (Crl.) No. 1136/2002 ( N.C.B. vs. Amar Pal Singh ) and SLP(Crl.)
No. 434/2003, ( N.C.B. vs. Smt. Hamida Sayyed Ali Shaikh) this Court did not
interfere with order granting bail on the sole ground of long passage of time.
Therefore, it is submitted that liberty granted to the respondent-accused
should not be withdrawn.
would be appropriate to take note of few provisions which have relevance i.e.
Section 2(xxiii) defining "psychotropic substances", and Section 37
dealing with bail. They read as follows:
2(xxiii) "psychotropic substance" means any substance, natural or
synthetic, or any natural material or any salt or preparation of such substance
or material included in the list of psychotropic substances specified in the
to be cognizable and non-bailable –
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974), -
offence punishable under this Act shall be cognizable;
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
Public Prosecutor has been given an opportunity to oppose the application for
such release, and
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.
The limitation 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
(2 of 1974) or any other law for the time being in force on granting of
observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995
(4) SC 253) clause (b) of sub- section (1) of Section 37 imposes limitations on
granting of bail in addition to those provided under the Code. The two
limitations are (1) an opportunity to the public prosecutor to oppose the bail application
and (2) satisfaction of the Court that there are reasonable grounds for
believing that the accused is not guilty of such offence and that he is not
likely to commit any offence while on bail.
limitations on granting of bail come in only when the question of granting bail
arises on merits. Apart from the grant of opportunity to the public prosecutor,
the other twin conditions which really have relevance so far the present
accused-respondent is concerned, are (1) the satisfaction of the Court that
there are reasonable grounds for believing that the accused is not guilty of
the alleged offence and that he is not likely to commit any offence while on
bail. The conditions are cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has to be based for
reasonable grounds. The expression "reasonable grounds" means
something more than prima facie grounds. It contemplates substantial probable
causes for believing that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires existence of such
facts and circumstances as are sufficient in themselves to justify satisfaction
that the accused is not guilty of the alleged offence and he is not likely to
commit any offence while on bail. This nature of embargo seems to have been
envisaged keeping in view the deleterious nature of the offence, necessitates
of public interest and the normal tendencies of the persons involved in such
network to pursue their activities with greater vigour and make hay when, at
large. In the case at hand the High Court seems to have completely overlooked
the underlying object of Section 37 and transgressed the limitations
statutorily imposed in allowing bail. It did not take note of the confessional
statement recorded under Section 67 of the Act.
reading of the impugned judgment shows that the scope and ambit of Section 37
of the NDPS Act was not kept in view by the High Court. Mere non-compliance of
the order passed for supply of copies, if any, cannot as in the instant case
entitle an accused to get bail notwithstanding prohibitions contained in
circumstances under which the bail can be granted in the background of Section
37 have been indicated above.
case is not one to which the exceptions provided in Section 37 can be applied.
to the plea reqarding long passage of time it is to be noted that the two
orders passed by this Court in SLP (crl.) Nos. 1136/2002 and 434/2003 referred
to above do not lay down any principle of law of invariable nature to be
universally applied. Furthermore, disposal of SLP against a judgment of the
High Court does not mean that the said judgment is affirmed by such dismissal.
The order passed in any SLP at threshold without detailed reasons does not
constitute any declaration of law or constitute a binding precedent. (see Union
of India and others vs. Jaipal Singh 2003(7) Supreme 676). This court cannot
and does not reverse or modify the decree or order appealed against while
deciding the petition for special leave to appeal and that too when the SLP was
being dismissed. What is impugned before this Court can be reversed or modified
only after granting leave and then assuming appellate jurisdiction over it. If
the order impugned before this Court cannot be reversed or modified at the SLP
stage obviously that order cannot also be affirmed at the SLP stage (see Kunhayammed
and others vs. State of Kerala and another (2000)6 SCC 359) and Sri Ramnik Vallabhdas
Madvane and Ors. vs. Taraben Pravinlal Madhvani 2003 (8) Supreme 208).
inevitable conclusion is that the judgment has no legal sanction. We,
therefore, set aside the impugned judgment of the High Court granting bail to
respondent-accused is directed to surrender to custody forthwith.