Union of India Vs.
Rattan Mallik @ Habul  INSC 155 (23 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 137 OF 2009
(Arising out of S.L.P. (Criminal) No.1057 of 2008) UNION OF INDIA -- APPELLANT
D.K. JAIN, J.:
in this appeal, by the Union of India, is to the order dated 13th November,
2006, passed by the High Court of Judicature at Allahabad suspending the
sentence awarded by the trial Court to the respondent for having committed
offences under Sections 8/27A and 8/29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short `the NDPS Act') and granting him bail.
in this appeal we propose to deal with the short question, viz. whether the
High Court, while accepting the prayer for grant of bail, had kept in view the
parameters of Section 37 of the NDPS Act, we deem it unnecessary to advert to
the facts of the case against the respondent in greater detail. It would
suffice to note that the case of the prosecution against the respondent was
that he was involved in financing and trading in 14.900 kilograms of heroin,
recovered from a specially made cavity above the cabin of a truck. Upon
consideration of the evidence adduced, the Trial Court came to the conclusion
that the prosecution had successfully proved the charges against the respondent
and three others.
On conviction, the
Trial Court sentenced the respondent to undergo rigorous imprisonment for ten
years and to pay a fine of Rs.1 lac under Section 27A of the NDPS Act and
undergo rigorous imprisonment for ten years and a fine of Rs.1 lac under
Section 29 of the NDPS Act, with default stipulation.
aggrieved, the respondent preferred an appeal to the High Court along with an
application for suspension of sentence and grant of bail till his appeal was
finally decided. The High Court, by the impugned order, has allowed the bail
application and has ordered that the respondent shall be released on bail on
his 2 executing a personal bond and furnishing two sureties each in the like
amount to the satisfaction of the concerned Court.
considerations which weighed with the High Court for suspension of sentence and
grant of bail are brief and for the sake of ready reference are extracted
has been convicted under Sections 8/27-A and 8/29 N.D.P.S. Act for ten years
R.I and also fine. Nothing has been found from his possession. Besides the
appellant is in jail since 5.9.2003. Three years have already lapsed. There is
no chance of the appeal being heard within a period of seven years."
thereby, the Union of India has preferred this appeal.
A. Sharan, learned Additional Solicitor General of India, strenuously urged
that the High Court has committed a grave error of law in granting bail to the
respondent, ignoring the mandatory provisions of Section 37 of the NDPS Act.
The learned counsel contended that the High Court lost sight of the
restrictions and limitations imposed by Section 37 of the NDPS Act.
According to the
learned counsel, the grant of bail to the respondent, without recording any
finding on the conditions as stipulated in Section 37(1)(b)(ii) of the NDPS
Act, the order suspending the sentence is ex facie illegal and therefore
deserves to be set aside, with a direction to the respondent to surrender to
custody forthwith. In support of the proposition that suspension 3 of sentence
by the appellate Court has to be within the parameters of law, prescribed by
the Legislature, the learned senior counsel placed reliance on a Maharashtra1.
counsel appearing on behalf of the respondent, on the other hand, supported the
impugned order and submitted that if the impugned order is read as a whole, it
can be inferred therefrom that the learned Judge was conscious of the
provisions of Section 37 of the NDPS Act. It is, thus, urged that the order
granting bail to the respondent being discretionary, this Court should be loath
to interfere with it in exercise of its jurisdiction under Article 136 of the
carefully gone through the impugned order, we are constrained to observe that
while dealing with the application for bail, the learned Judge appears to have
lost sight of the mandatory requirements of Section 37 of the NDPS Act and
thus, the impugned order is clearly unsustainable.
broad principles which should weigh with the Court in granting bail in a
non-bailable offence have been enumerated in a catena of decisions of this
Court and, therefore, for the sake of brevity, we do not propose to reiterate
the same. However, when a prosecution/conviction is for offence(s) under a 1
(2000) 8 SCC 437 4 special statute and that statute contains specific
provisions for dealing with matters arising thereunder, including an
application for grant of bail, these provisions cannot be ignored while dealing
with such an application. As already noted, in the present case, the respondent
has been convicted and sentenced for offences under the NDPS Act and therefore,
while dealing with his application for grant of bail, in addition to the broad
principles to be applied in prosecution for offences under the Indian Penal
Code, 1860 the relevant provision in the said special statute in this regard
had to be kept in view.
37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29th May,
1989 with further amendment by Act 9 of 2001 reads as follows:
"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 offences under Section 19 or Section 24 or Section
27A and also for offences involving commercial quantity 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.
5 (2) The
limitations 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 (12
of 1974), or any other law for the time being in force on granting of
is plain from a bare reading of the non-obstante clause in the Section and
sub-section (2) thereof that the power to grant bail to a person accused of
having committed offence under the NDPS Act is not only subject to the
limitations imposed under Section 439 of the Code of Criminal Procedure, 1973,
it is also subject to the restrictions placed by sub-clause (b) of sub- section
(1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the
Public Prosecutor to oppose the application for such release, the other twin
conditions viz; (i) the satisfaction of the Court that there are reasonable
grounds for believing that the accused is not guilty of the alleged offence; and
(ii) that he is not likely to commit any offence while on bail, have to be
satisfied. It is manifest that the conditions are cumulative and not
alternative. The satisfaction contemplated regarding the accused being not
guilty, has to be based on "reasonable grounds". The expression
`reasonable grounds' has not been defined in the said Act but means something
more than prima facie grounds. It connotes substantial probable causes for
believing that the accused is not guilty of the offence he is charged with. The
reasonable belief contemplated in turn points to existence of such facts and 6
circumstances as are sufficient in themselves to justify satisfaction that the
Shanker Kesari2] Thus, recording of satisfaction on both the aspects, noted
above, is sine qua non for granting of bail under the NDPS Act.
may, however, hasten to add that while considering an application for bail with
reference to Section 37 of the NDPS Act, the Court is not called upon to record
a finding of `not guilty'. At this stage, it is neither necessary nor desirable
to weigh the evidence meticulously to arrive at a positive finding as to
whether or not the accused has committed offence under the NDPS Act.
What is to be seen is
whether there is reasonable ground for believing that the accused is not guilty
of the offence(s) he is charged with and further that he is not likely to
commit an offence under the said Act while on bail. The satisfaction of the Court
about the existence of the said twin conditions is for a limited purpose and is
confined to the question of releasing the accused on bail.
in mind the above broad principles, we may now consider the merits of the
present appeal. It is evident from the afore-extracted paragraph that the
circumstances which have weighed with the learned Judge to conclude that it was
a fit case for grant of bail are : (i) that nothing has been found 2 (2007) 7
SCC 798 7 from the possession of the respondent; (ii) he is in jail for the
last three years and (iii) that there is no chance of his appeal being heard
within a period of seven years. In our opinion, the stated circumstances may be
relevant for grant of bail in matters arising out of conviction under the Indian
Penal Code, 1860 etc. but are not sufficient to satisfy the mandatory
requirements as stipulated in sub-clause (b) of sub-section (1) of Section 37
of the NDPS Act.
according to the Ld. Judge, nothing was found from the possession of the
respondent, it could not be said at this stage that the respondent was not
guilty of the offences for which he had been charged and convicted. We find no
substance in the argument of learned counsel for the respondent that the
observation of the learned Judge to the effect that "nothing has been
found from his possession" by itself shows application of mind by the Ld.
Judge tent amounting to "satisfaction" within the meaning of the said
provision. It seems that the provisions of the NDPS Act and more particularly
Section 37 were not brought to the notice of the learned Judge.
in our opinion, the impugned order having been passed ignoring the mandatory
requirements of Section 37 of the NDPS Act, it cannot be sustained.
Accordingly, the appeal is allowed and the matter is remitted back to the High
Court for fresh consideration of the application filed by the respondent for
suspension of sentence and for granting of bail, keeping in view the parameters
of Section 37 of the NDPS Act, enumerated above. We 8 further direct that the
bail application shall be taken up for consideration only after the respondent
surrenders to custody. The respondent is directed to surrender to custody within
two weeks of the date of this order, failing which the High Court will take
appropriate steps for his arrest.
appeal stands disposed of accordingly.