Intelligence
Officer, Narcotics C. Bureau Vs. Sambhu Sonkar & Anr [2001] Insc 57 (2 February 2001)
M.B.
Shah & S.N. Variava. Shah, J.
L.T.J
Leave
granted.
Limited
question involved in this appeal is whether the restrictions imposed under
Section 37 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter
referred to as the Act) would be applicable in a case where offence is
punishable under Section 20 (b) (i) for possessing Ganja? It is the prosecution
version that acting on intelligence report a batch of Narcotic Control Bureau
officers searched the premises of respondent No.1, Shambhu Sonkar, at G.T. Road,
P.S. Golabari, District Howrah on 22.11.1999 and recovered 18.7 Kgs. of Ganja
and a sum of Rs.4,370/- . On the same date a confessional statement of the
respondent was also recorded. The respondent filed a bail application before
the Additional District Judge, Howrah, which
was rejected by order dated 2nd February, 2000. Thereafter, the respondent approached the High Court of Calcutta and
the High Court by its order dated 7th March, 2000 allowed the said bail
application by holding that restrictions imposed by Section 37 of the N.D.P.S.
Act, 1985 (hereinafter referred to as NDPS Act) would not be applicable as the
maximum imprisonment provided for the offence under Section 20(b)(i) is 5
years. That order is challenged by filing the present petition under Article
136 of the Constitution.
Learned
Additional Solicitor General submitted that order passed by the High Court is
on the face of it against the statutory mandate provided under Section 37. As
against this, learned counsel appearing for the respondents submitted that the
interpretation given by the High Court is justified, particularly because it
affects personal liberty of a citizen who is yet to be tried. For appreciating
the rival contentions we would refer to Sections 20 and 37 of the said Act
which read thus: -
20.
Punishment for contravention in relation to cannabis plant and cannabis.Whoever,
in contravention of any provision of this Act or any rule or order made or
condition of licence granted thereunder,--
(a) cultivates
any cannabis plant; or
(b) produces,
manufactures, possesses, sells, purchases, transports, imports inter-State,
exports inter-State or uses cannabis, shall be punishable,--
(i) where
such contravention relates to ganja or the cultivation of cannabis plant, with
rigorous imprisonment for a term which may extend to five years and shall also
be liable to fine which may extend to fifty thousand rupees;
(ii)
where such contravention relates to cannabis other than ganja, with rigorous
imprisonment for a term which shall not be less than ten years but which may
extend to twenty years and shall also be liable to fine which shall not be less
than one lakh rupees and which may extend to two lakh rupees;
Provided
that the court may, for reasons to be recorded in the judgment, impose a fine
exceeding two lakh rupees.
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.
(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 time being in force on granting of bail.
The
scheme of section 37 reveals that the exercise of the power to grant bail by
the Special Judge is not only subject to the limitations contained under
Section 439 of the Cr.P.C., but is also subject to the limitation placed by
Section 37 which commences with non-obstante clause. The operative part of the
said section is in negative in prescribing the enlargement of bail of any
person accused of commission of an offence under the Act unless two conditions
are satisfied. The first condition is that prosecution must be given an
opportunity to oppose the application and the second is that the Court must be
satisfied that there are reasonable grounds for believing that he is not guilty
of such offence. If either of these two conditions is not satisfied, the ban
for granting bail operates. As per the mandate of Section 37, no person accused
of an offence punishable for a term of imprisonment of 5 years or more under
the Act can be released on bail unless the conditions mentioned in sub-clauses
(i) and (ii) of Clause (b) are satisfied. Pre-condition for application of
clause (b) would be that offence is punishable for a term of imprisonment of 5
years or more. Plain reading of the above said clause makes it clear that in
case where the person is accused of an offence punishable for a terms of
imprisonment of 5 years then he cannot be released unless the conditions
mentioned therein are satisfied. In case of offence punishable under Section 20
(b) (i), maximum punishment is for a term of imprisonment of 5 years and a fine
which may extend to Rs. 50,000/-. There is no justifiable reason to hold that
maximum term of imprisonment is to be excluded for the purpose of
interpretation and Section 37 would not cover in its fold offence punishable
under Section 20(b)(i).
Further,
even if we consider the legislative intent in context of other provisions which
provide for punishment it would be clear that Section 37 would cover in its
fold the offence punishable under Section 20(b)(i). Provisions empowering the
Court to impose punishment can be divided into four parts, namely, (i) less
than five years, (ii) up to five years (iii) more than five years and (iv) providing
death penalty. Sections 26, 27 and 32 provide for imprisonment for a term which
may be less than five years.
Section
25(a) provides that the imprisonment may extend up to ten years. Other
sections, namely, Section 15, 16, 17, 18, 19, 20(b)(ii), 21, 22, 23, 24 and 25
provide that punishment shall not be for a term less than ten years.
Except
Section 20(b)(i), there is no provision which prescribes that imprisonment may
extend to five years. For the offence punishable under said Section, in
appropriate cases, Court may impose maximum punishment of five years.
Therefore,
there is no reason to exclude the said clause from the operation of Section 37.
The
aforesaid interpretation is also in consonance with the legislative object. The
Act has provided stringent provisions for the control and regulation of
operations relating to Narcotic Drugs and Psychotropic Substances and matters
connected therewith. For granting of bail, in the Statement of Objects and
Reasons for introducing Bill 125 of 1988 (Act 2 of 1989), the following passage
has been stated:
Even
though the major offences are non-bailable by virtue of the level of
punishment, on technical grounds, drug offenders were being released on bail.
In the light of certain difficulties faced in the enforcement of the NDPS Act,
1985 the need to amend the law to further strengthen it, has been felt.
Further,
in Maktool Singh v. State of Punjab [(1999) 3 SCC 321] this Court while
interpreting Section 32A which provides that no sentence awarded under the Act
other than Section 27 shall be suspended or remitted or commuted, considered
Section 37 along with the scheme of the Act and held thus:- The only offences
exempted from the purview of the aforesaid rigours on the bail provisions are
those under Sections 26 and 27 of the Act. The former is punishable up to a
maximum imprisonment for three years and the latter up to a maximum
imprisonment for one year. For all other offences, the courts power to release
an accused on bail during the period before conviction has been thus
drastically curtailed by providing that if the Public Prosecutor opposes the
bail application, no accused shall be released on bail, unless the court is
satisfied that there are reasonable grounds for believing that he is not guilty
of such offence.
In
view of the foregoing discussion, it would be difficult to accept the
contention of the learned counsel for the respondent that the liberal
interpretation given by the High Court to Section 37 is justified as it affects
personal liberty of a citizen who is yet to be tried. In our view, considering
the legislative intent of curbing the practice of giving bail on technical
ground in a crime which adversely affects the entire society including lives of
number of persons and the object of making stringent provisions for control of
illicit traffic in narcotic drugs and psychotropic substances, there is no
reason to accept the construction of the section which its language can hardly
bear.
In the
result, the appeal is allowed, the impugned order passed by the High Court
releasing the respondent on bail is set aside. Bail bonds of the accused stand
cancelled and he is directed to be taken into custody. The trial court is
directed to expedite the trial.
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