Narcotics
Control Bureau Vs. Krishan Lal & Ors [1991] INSC 20 (29 January 1991)
Pandian,
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
CITATION:
1991 AIR 558 1991 SCR (1) 139 1991 SCC (1) 705 JT 1991 (1) 258 1991 SCALE (1)97
ACT:
Narcotic
Drugs and Psychotropic Substances Act, 1985:Sections 36 and 37(2)-Special
Courts-Powers to grant bail-Restrictions- Whether to be treated as fetters on
High Court to grant bail under s. 439, Cr. P.C. Code of Criminal Procedure
1973: Section 439-Bail-High Court's power-Whether restricted by s. 37(2) of the
Narcotics Drugs and Psychotropic Substances Act, 1985.
HEAD NOTE:
The
respondents in the appeals who were arrested for offences under various
sections of the narcotic Drugs and Psychotropic Substances Act, 1985, were
refused bail, and were remanded to judicial custody. On the basis of the report
the Magistrate took cognizance, and remanded them to judicial custody.
The
respondents filed writ petition and criminal miscellaneous petition before the
High Court seeking bail under s. 167(2), Criminal Procedure Code on the grounds
of belated submission of the chargesheet, and on account of illness. The matter
was referred to a Division Bench held that the limitations placed on the
Special Court under s. 37 (2) of the Narcotic Drugs and Psychotropic Substances
Act could not be read as fetters on the High Court in exercise of its power
under s. 439, Cr.P.C. to grant bail.
Aggreieved,
the Narcotics Control Bureau appealed to this Court, and contended that the
High Court had no untremelled powers in the matter of granting bail, as the
provisions of s. 37 of the NDPS Act override those of s. 439, Cr. P.C.
On the
question: whether the limitation placed on the Special Court under s. 37(2) of
the NDPS Act is to be treated as fetters on the powers of the High Court also
in granting bail under s. 439, Cr. P.C.
Disposing
of the appeals, this Court, 140
HELD:
1. The powers of the High Court to grant bail under s. 439, Cr. p.C. are
subject to the limitations contained in the amended s.37 of the Narcotic Drugs
and Psychotropic Substances Act, 1985, and the restrictions placed on the
powers of the Court under the said section are applicable to the High Court
also in the matter of granting bail. [151E]
2.
When there is a special enactment in force relating to the manner of
investigation, enquiry or otherwise dealing with offences, the other powers
under the Code of Criminal Procedure should be subject to such special
enactment. In interpreting the scope of such a statute the dominant purpose
underlying the statute has to be borne in mind.
[145C]
3.1
The Narcotic Drugs and Psychotropic Substances Act, 1985 is a special
enactment, enacted with a view to make stringent provisions for the control and
regulation of operations relating to narcotic drugs and psychotropic
substances. That being the underlying object and particularly when the
provisions of s.37 of the NDPS Act are in negative terms limiting the scope of
the applicability of the provisions of the Criminal Procedure Code regarding
bail, it cannot be said that the High Court's power to grant bail under s. 439,
cr. P.C. are not subject to the limitation mentioned under s. 37 of the NDPS
Act. [144E-G]
3.2
Section 37 of the NDPS Act starts with a non- obstinate 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/[144E; 145F]
3.3
The non-obstante clause with which s. 37 of the NDPS Act starts should be given
its due meaning and clearly it is intended to restrict the powers to grant bail
[144G] 3.4 In case of inconsistency between s. 439, Cr. P.C. and S.37 of the
NDPS Act, s. 37 prevails.
3.5
Consequently the power to grant bail under any of the provisions of the Code of
Criminal Procedure should necessarily be subject to the conditions mentioned in
s. 37 of the NDPS Act. [145F,G] Lt. Col. Prithi Pal Singh Bedi etc. v. Union of
India & Others, [1983] 1 SCR 393 and Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR page 52, relied on.
141 Usmanbhai
Dawoodbhai Memon and Others v. State of Gujarat, [1988] 2 SCC 271, referred to.
4. The
two accused-respondents being on bail for a long time under the orders of the
High Court and the Narcotics Control Bureau not passing the cancellation of
bail, the matter need not be remitted to the High Court, and the respondents
would continue to be on bail. [151F]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal Nos. 810-811 of 1989.
From
the Judgement and Order dated 22.9.1989 of the Delhi High Court in Crl. W.P.
No. 622 of 1988 and Crl. Misc. Main Petition No. 1132 of 1988.
J.S. Arora,
Sudhansu S. Das, Satish Agrawal and N.P. Kaushik for the Appellant. V.C. Mahajan,
A.K. Ganguli Ashok Bhan, A. Subhashini, P.P.. Tripathi and S.K. Sabharwal for
the Respondents.
The Judgement
of the Court was delivered by K. JAYACHANDRA REDDY, J. The High Court of Delhi
by a common order in two petitions filed under The Narcotic Drugs & Psychtropic
Substances Act, 1985 (`NDPS Act' for short) held that the restrictions placed
on the powers of the Court to grant bail in certain offences under the amended
Section 37 of the NDPS Act are not applicable to the High Court.
Aggrieved
by the said order, the Narcotic Control Bureau has filed these two appeals.
The peritioners
before the High Court in two different cases were arrested for offences under
various Sections of the NDPS Act. They were refused bail and remanded to
judicial custody. On the basis of the report the Magistrate concerned took
cognizance and remanded them to judicial custody. The petitioners filed a writ
petition as well as a criminal miscellaneous petition seeking bail firstly on
the ground that they are entitled to be released on bail as required under
Section 167(2) of the Code of Criminal Procedure as the charge-sheet was filed
at a belated stage and secondly on the ground of illness. A learned Single
Judge referred this matter to a Division Bench and the Division Bench by the impugned
order held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as 142
fetters on the High Court in exercise of powers under Section 439 Cr. P.C. for
granting bail. The only limited question to be decided in these appeals is
whether the view taken by the High Court is right or wrong and we may also
mention that leave was granted only to this limited extent.
The
learned counsel appearing for,the appellants submitted that the High Court has
misconstrued the provisions of Section 36-A and 37 of the NDPS Act and that
latter Section as amended starts with the non-obstante clause limiting the
scope of provisions of the Cr.P.C. in the matter of granting bail and as such
the High Court has no untremelled powers to grant bail inasmuch as the
provisions of the amended Section 37 of the NDPS Act override the provisions of
Section 439 Cr. P.C.
We may
at this stage note the relevant provisions of NDPS Act. The preamble to the
NDPS Act shows that the object of the Act is to consolidate and amend the law
relating to narcotic drugs and to make stringent provisions for the control and
regulation of operations relating to narcotic drugs and psychotrophic
substances etc. Sections 15 to 35 deal with various offences and penalties. Section
36 provides for constitution of Special Courts and empower the Government to
constitute Special Courts and a person shall not be qualified for appointment
as a Judge of the Special
Court unless he is
immediately before such appointment, a Sessions Judge or an Additional Sessions
Judge. Section 36-A enumerates the offences triable by Special Courts and also
deals with the procedure regarding the detention of the accused when produced
before a Magistrate. Sub-section (b) of Section 36-A lays down that if the
Magistrate to whom an accused is forwarded under Section 167 Cr. P.C.,
considers that the detention of such person for fifteen days is unnecessary he
shall forward him to the Special Court having jurisdiction who shall take
cognizance and proceed with the trial. Sub-section (3) of Section 36-A reads
thus:
"Nothing
contained in this section shall be deemed to affect the special powers of the
High Court regarding bail under Section 439 of the Code of Criminal Procedure,
1973 (2 of 1974), and the High Court may exercise such powers including the
power under clause (b) of sub-section (1) of that section as if the reference
to "magistrate" in that section included also a reference to a
"Special Court" constituted under Section 36." 143 Now let us note
Section 37 as amended in the year 1989 and the same is in the following terms:
"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 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.
(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 (2 of
1974), or any other law for the law being in force on granting of bail."
Now it becomes necessary to extract Section 439 Cr. P..C.
which
reads as under:
"439.
Special powers of the High Court or Court of Section regarding bail--(1) A High
Court or Court of Session may direct-- (a) that any person accused of an
offence and in custody be released on bail, and if the offence is of the nature
specified in sub-section (3) of Section 437 , may impose any condition which it
considers necessary for the purposes mentioned in that sub-section;
(b) that
any condition imposed by a magistrate when releasing any person on bail be set
aside or modified;
Provided
that the High Court or the Court of Session shall, 144 before granting bail to
a person who is accused on anoffence which is triable exclusively by the Court
of Session or which, though not so triable, is punishable with imprisonment for
life, give notice of the application for bail to the Public prosecutor unless
it is, for reason to be recorded in writing , of opinion that it is not
practicable to give such notice.
(2) A
High Court or Court of Session may direct that any person who has been released
on bail under this Chapter be arrested and commit him to custody." The
High Court having taken into consideration sub- section (3) of Section 36-A
took the view that the limitations placed on the Special Courts cannot be read
as fetters in its exercise of the powers under Section 439 Cr. P.C.
In
this context, the Division Bench referred to to sub- sections(8) and (9) of
Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987
('TADA Act' for short) which are similar to Section 37 of NDPS Act and also
relied on a judgment of this Court in Usmanbhai Dawoodbhai Memon and Others v.
State of Gujarat, [1988] 2 SCC 271 a case which arose under the TADA Act. We
shall refer to this judgment at a later stage after analysing the scope and
effect of Section 37 of NDPS Act.
Section
37 as amended starts with a non-obstante 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. The nDPS Act is a special enactment as
already noted it was enacted with a view to make stringent provision for the
control and regulation of operations relating to narcotic drugs and
psychotropic substances. The being the underlying object and particularly when
the provisions of Section 37 of NDPS Act are in negative terms limiting the
scope of the applicability of the provisions of Cr. P.C. regarding bail, in our
view, it cannot be held that the High Court's powers to grant bail under
Section 439 Cr. P.C. are not subject to the limitation mentioned under Section
37 of NDPS Act. The non-obstante clause with which the Section starts should be
given its due meaning and clearly it is intended to restrict the powers to
grant bail. In case of inconistency between Section 439 Cr. P.C. and Section 37
of the NDPS Act, Section 37 prevails. In this context Section 4 Cr. P.C. may be
noted which read thus:
145
"(4) Trial of offences under the Indian Penal Code and other laws--(1) All
offences under the Indian Penal Code (45 of 1860) shall be investigated,
inquired into, tried, and otherwise dealt with according to the provision
hereinafter contained.
(2)
All offences under any other law shall be investigated, inquired into, tried,
and otherwise dealt with according to the same provision, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such
offences." It can thus be seen that when there is a special enactment in
force relating to the manner of investigation, enquiry or otherwise dealing
with such offences, the other powers under Cr. P.C. should be subject to such
special enactment.
In interpretating
the scope of such a statute the dominant purpose underlying the statute has to
be borne in mind. In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India
& Others, [1983] 1 SCR 393 regarding the mode of interpretation the Supreme
Court observed as follows:
"The
dominant purpose in construing a statute is to ascertain the intention of
Parliament. One of the well recognised canons of construction is that the
legislature speaks its mind by use of correct expression and unless there is
any ambiguity in the language of the provision, the Court should adopt literal
construction if it does not lead to an absurdity." As already noted,
Section 37 of the nDPS Act starts with a non-obstante clause stating that
notwithstanding anything contained in the Conde of Criminal Procedure, 1973 no personaccused
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 NDPS Act.
We
shall now refer to some of the decisions of the Court dealing with the
analogous provision in other special enactments. Rule 184 of the Defence and
Internal Security of India Rules, 1971 which is analogous to Sec. 37 of the
NDPS Act runs as follows:
146
"Rule 184. Notwithstanding anything contained in the Code of Criminal
Procedure, 1898 (V of 1898) no person accused or convicted of a contravention
of these Rules or orders made thereunder shall, if in custody, be released on
bail or his own bond unless-- (a) the prosecution has been given an opportunity
to opposed the application for such release, and (b) where the prosecution
opposes the application and the contravention is of any such provision of these
Rules or orders made thereunder as the Central Government or the State
Government may be notified order specify in this behalf, the Court is satisfied
that there are reasonable grounds for believing that he is not guilty of such
contravention." The Rule commences with a non-obstante clause and in its
operative part imposes a ban on release on bail of a person accused or
convicted of a contravention of the Rules. it imposes fetters on the exercise
of the power of granting bail in certain kinds of cases. In Balchand Jain v.
State of Madhya Pradesh, [1977] 2 SCR 52 a question arose whether the power to
grant anticipatory bail under Section 438 can stand side by side with Rule 184
of whether former provision is overridden by the latter. This Court held that
Rule 184 does not stand in the way of Court of Session or High Court granting
anticipatory bail on the ground that the two provision operate at two different
stages. Of course, in the instant case, we are not concerned with Section 438
but the observation regarding the scope of Rule 184 are relevant which read
thus:
"But
even if Rule 184 does not apply in such a case, the policy behind this Rule
would have to be borne in mind by the Court while exercising its power to grant
'anticipatory bail' under Section 438. The Rule making authority obviously
though offences arising out of contravention of Rules and orders made
there-under were serious offences as they might imperil the defence of India or
civil defence or internal security or public safety or maintenance of public
order or hamper maintenance of supplies and services to the life of the
community and hence it provided in Rule 184 that no person accused or convicted
or contravention of any Rule or order made under the Rules, shall be- 147
released on bail unless the prosecution is given an opportunity to oppose the
application for such release and in case the contravention is of a Rule or
order specified in this behalf in a notified order, there are reasonable
grounds for believing that the person concerned is not guilty of such
contravention. If these are the conditions provided by the Rule making
authority for releasing on bail a person arrested on an accusation of having
committed contravention of any Rule or order made under the Rules, it must
follow a fortiori that the same conditions must provide the guidelines while
exercising the power to grant 'anticipatory bail'to a person apprehending
arrest on such accusation, though they would not be strictly applicable."
(emphasis supplied) Fazal Ali, J. in his concurring judgment also held thus:
"(4)_that
in cases covered by r. 184 of the Rules the Court exercising power under s. 436
or s. 438 of the Code has go to comply with the conditions mentioned in clauses
(a) & (b) of r. 184 and only after the Court has complied with those
conditions that an order under any of these section of the Code in respect of
such offences could be passed." In Usmanbhai's case a question whether the
provisions of sub-sections (8) and (9) of Section 20 of the TADA Act limit the
scope of Sections 437 and 439, came up for consideration. The language of
sub-sections (8) and (9) of section 20 is analogous to Section 37 of NDPS Act
and they read thus:
"(8)
Notwithstanding anything contained in the Code, no person accused on an offence
punishable under this Act or any rule made thereunder shall, if in custody, if
in custody, be released on bail or on his own bond unless-- (a) the Public
Prosecutor has been given an opportunity to oppose the application for such
release, and (b) 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.
(9)
The limitation on granting of bail specified in sub-section (8) are in addition
to the limitations under the Code or any other law for the time being in force
or granting of bail." It may be noted at this stage that the power of the
High Court or the Sessions Court to grant anticipatory bail has been completely
taken away under Section 20(7) of the TADA Act. The contention was that the
sources of power of a designated court to grant bail is under Section 437
subject to some limitations under Section 20(8) and that it does not in any
manner affect the power of the High Court independently under Section 439 to
grant bail. It is also contended that to take away the power of the High Court
would tantamount to strike at the very foundation of an independent judiciary
free from executive control. After considering these submissions this Court
held that:
"Though
there is no express provision excluding the applicability of Section 439 of the
Code similar to the one contained in Section 20(7) of the Act in relation to a
case involving the arrest of any person on an accusation of having committed an
offence punishable under the Act or any rule made there under, but that result
must, by necessary implication, follow. it is true that the source of power of
a Designated Court to grant bail is no Section 20(8)
of the Act as it only places limitations on such power. This is made explicit
by Section 20(9) which enacts that the limitations on granting of bail
specified in Section 20(8) are 'in addition to the limitations under the Code
or any other law for the time being in force'.
But it
does not necessarily follow that the power of a Designated Court to grant bail
is relatable to Section 439 of the Code. it cannot be doubted that a Designated Court is 'a court other than the High
Court or the Court of Session' within the meaning of section 437 of the Code.
The exercise of the power to grant bail by a Designated Court is not only
subject to the limitations contained therein, but is also subject to the
limitations placed by Section 20(8) of the Act." (emphasis supplied)
Having held so, the learned Judge proceeded to consider the controversy as to
the power of the High Court to grant bail under Section 439 Cr. P.C. Act
excluding the jurisdiction of the High Court entertain an 149 appeal or
revision against the judgment of the designated court, it is held that the High
Court had no jurisdiction to entertain an application for bail under Section
439 or Section 482 of the Code of Criminal procedure. however, regarding the
construction of non-obstante clause in Sec.
20(8)
of the Act, this Court held as under:
"The
controversy as to the power of the High Court to grant bail under Section 439
of the Code must also turn on the construction of Section 20(8) of the Act. It
commences with a non-obstante clause and in its operative part by the use of
negative language prohibits the enlargement on bail of any person accused of
commission of an offence under the Act, if in custody, unless two conditions
are satisfied. The first condition is that the prosecution must be given an
opportunity to oppose the application for such release and the second condition
is that where there is such opposition, the court must be 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. If either of these
two conditions is not satisfied, the ban operates and the person under
detention cannot be released on bail. it is quite obvious that the source of
power of a Designated Court to grant bail is not section 20(8) of the Act but
it only places limitations on such powers. This is implicit by Section 20(9)
which in terms provides that the limitations or granting of bail specified in
sub- section (8) are in addition to the limitations under the Code or any other
law for the time being in force on granting of bail. it therefore follows that
the power derived by a Designated Court to grant bail to a person accused of an
offence under the Act, if in custody, is derived from the Code and not from
section 20(8) of the Act.
It can
thus be seen that even in Usmanbhai's case also there is no observation
supporting the view taken by the High Court in the impugned judgment. As a
matter of fact in Usmanbhai's case Sen, J. who spoke for the Bench, after
referring to the ratio laid down in Balchand Jain's case observed thus:
"The
view expressed in Balchand Jain case is not applicable at all for more than one
reason. There was nothing in the defence and Internal Security of India Act or
the Rules framed there-under which would exclude the jurisdiction 150 and power
of the High Court altogether. On the contrary, Section 12(2) of that Act
expressly vested in the High Court the appellate jurisdiction in certain
specified cases. In view of the explicit bar in Section 19(2), there is
exclusion of the jurisdiction of the High Court. It interdicts that no appeal
or revision shall lie to any court, including the High Court, against any
judgment, sentence or order, not being an interlocutory order, of a Designated
Court. The Act by Section 16(1) confers the right of appeal both on facts as
well as on law to the Supreme Court. Further while it is true that Chapter
XXXIII of the Code is still preserved as otherwise the Designated Court would
have no power to grant bail, still the source of power is not Section 439 of
the Code but Section 437 being a court other than the High Court or the Court
of Session. Any other view would lead to an anomalous situation.
If it
were to be held that the power of a Designated Court to grant bail was
relatable to Section 439 it would imply that not only the High Court but also
the High Court of Session would be entitled to grant bail on such terms as they
deem fit. The power to grant bail under Section 439 is unfettered by any
conditions and limitations like Section 437. It would run counter to the
express prohibition contained in Section 20(8) of the Act which enjoins that
notwithstanding anything in the code, no person accused of an offence
punishable under the Act or any rule made thereunder shall, if in custody, be
released on bail unless the conditions set forth in clauses (a) and (b) are
satisfied." (emphasis supplied) The High Court in the impugned judgment,
however, referred to Usmanbhai's case and held that the limitations placed
under Section 37 of the NDPS Act are exactly similar to the ones in sub-section
(8) and (9) of Section 20 of the TADA Act and they are applicable only to
special courts.
But we
may point out that in paragraph 16 in Usmanbhai's case it is observed:
"As
a murder of construction, we must accept the contention advanced by learned
counsel appearing for the State Government that the Act being a special Act
must prevail in respect of the jurisdiction and power of the High Court to
entertain an application for bail under section 439 of the Code or by recourse
to its inherent powers under section 482."
151
However, as already mentioned, the learned Judges held that the view expressed
in Balchand Jain's case is not applicable to the facts in Usmanbhai's case and
the same is clear from the observations made in Usmanbhai's case which read as
under:
"Lastly
both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme
of the Defence and Internal Security of India Act, 1971. They proceed on the
well recognised principle that an outer of jurisdiction of the ordinary courts
is not to be readily inferred, except by express provision or by necessary
implication. It all depends on the scheme of the particular Act as to whether
the power of the High Court and the Court of Session to grant bail under
Sections 438 and 439 exists. We must accordingly uphold the view expressed by
the High Court that it had no jurisdiction to entertain an application for bail
under Section 439 or under Section 482 of the Code" From the above
discussion it emerges that in Usmanbhai's case the Supreme Court did not
express anything contrary to what has been observed in Balchand Jain's case and
on the other hand at more than one place observed that such enactments should
prevail over the general enactment and the non-obstante clause must be powers
of the High Court to grant bail under Section 439 are subject to the
limitations contained in the amended Section 37 of the NDPS Act and the
restrictions placed on the powers of the Court under the said section are
applicable to the High Court also in the matter of granting bail. The point of
law is ordered accordingly.
The
two accused respondents in these two appeals have been on bail pursuant to the
order of the High Court, for a long time. The learned counsel appearing for the
Narcotics Control Bureau, the appellant herein, is also not pressing
cancellation of the bail. Therefore, we are not remitting the matters of the
High Court for fresh consideration.
Pending
the proceedings, they would continue to be on bail.
Subject
to the above clarification of law, the appeals are disposed of.
R.P.
Appeals disposed of.
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