State
of Madhya Pradesh Vs. Kajad [2001] Insc 465 (6 September 2001)
M.B.
Shah & R.P. Sethi. Sethi,J.
Leave
granted.
Acting
upon a definite information received by the Police Station Jawad, District Neemuch,
Madhya Pradesh, force was deployed and the respondent-accused apprehended on
the night of 24th
March, 2000. After
compliance of the mandatory provisions of Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter called "the Act"),
opium weighing 7 kgs. was seized from the accused which he had kept in his bag.
After completing necessary procedural formalities and getting the samples
tested, a charge-sheet was submitted against the accused in the competent
court. Application for bail moved by the accused was rejected by the trial
court.
Dissatisfied
with the rejection of his bail application, the respondent-accused moved an
application in the High Court which was registered as Miscellaneous Criminal
Case No.2052 of 2000. The said application was rejected by the High Court vide
order dated 5.6.2000.
Without
mentioning any change in the circumstances, the respondent- accused moved
another application in the High Court in the month of August, 2000 which was
adjourned from time to time and ultimately allowed vide the order impugned in
this appeal.
Learned
counsel appearing for the appelalnt-State has contended that the High Court has
committed an error of law by granting bail to the respondent-accused ignoring
the provisions of Section 37 of the Act, though merely making a mention of it
in the impugned order. It is further contended that in the facts and
circumstances of the case, the High Court was not justified in granting the
bail to the accused in view of the dismissal of his earlier bail application
and in the absence of any change in the circumstances. The learned Judge
granting the bail is stated to have adopted a casual approach in dealing with a
heinous crime committed under the Act. It is submitted that the order granting
the bail amounts to reviewing the earlier order which is not permissible in
criminal cases.
It is
not disputed that the accused was apprehended and charged for the commission of
an offence punishable under Section 18 of the Act which is punishable with
rigorous imprisonment for a term, not less than 10 years but which may extend
to 20 years and is also liable to a fine of not less than one lakh rupees.
Section
37 of the Act provides that the offences under the Act shall be cognizable and
non-bailable. It reads:
"Offences
to be cognizable and non-bailable- (1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 –
(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 or
any other law for the time being in force, or granting of bail." The
purpose for which the Act was enacted and the menace of drug trafficking which
intends to curtail is evident from its scheme. A perusal of Section 37 of the
Act leaves no doubt in the mind of the court that a person accused of an
offence, punishable for a term of imprisonment of five years or more, shall
generally be not released on bail. Negation of bail is the rule and its grant
and exception under sub clause (ii) of clause (b) of Section 37(1). For
granting the bail the court must, on the basis of the record produced before
it, be satisfied that there are reasonable grounds for believing that the
accused is not guilty of the offences with which he is charged and further that
he is not likely to commit any offence while on bail. It has further to be
noticed that the conditions for granting the bail, specified in clause (b) of
sub-section (1) of Section 37 are in addition to the limitations provided under
the Code of Criminal Procedure or any other law for the time being in force
regulating the grant of bail. Liberal approach in the matter of bail under the
Act is uncalled for.
Court
considered the scope of Section 37 along with the scheme of the Act and held:
"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 upto a maximum imprisonment for three years and the latter upto a
maximum imprisonment for one year. For all other offences, the court's 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." To the same effect are the judgments of this Court in
Intelligence Supreme 179).
In the
instant case, the learned Single Judge of the High Court has granted the bail
on his own sense of observation regarding the course of conduct adopted by the
accused at the time of his interception and arrest. Merely because the accused
was found to be continuing to hold bag containing opium during the period, the
raiding party searched him in accordance with the provisions of the Act, the
learned Judge was not justified to conclude "it is by itself
unnatural". How the learned Judge concluded that the conduct of the
accused or raiding party were unnatural is not discernible from the impugned
order. A person, apprehended by a raiding party, who is sought to be searched
is supposed to hold the goods in his possession unless he opts to flee from the
place of occurrence or advised to throw the container in which the offending
substance is contained.
Section
37 of the Act has been referred in the impugned order not for the purposes of
showing of its compliance but to justify the passing of an apparently wrong
order. If, besides referring to Section 37 of the Act, the learned Judge would
have referred to its provisions, he would not have fallen a prey to the
ulterior designs of the respondent-accused.
It has
further to be noted that the factum of the rejection of his earlier bail
application bearing Misc. case No. 2052 of 2000 on 5.6.2000 has not been denied
by the respondent. It is true that successive bail applications are permissible
under the changed circumstances. But without the change in the circumstances
the second application would be deemed to be seeking review of the earlier
judgment which is not permissible under criminal law as has been held by this
Court in Hari Singh Mann v. Harbhajan Singh Bajwa & Anr. [2001 (1) SCC 169]
and various other judgments.
We are
satisfied that the impugned order having been passed in violation of the
provisions of the Act by ignoring the mandatory requirements of Section 37 and
the conditions governing the grant of bail under the Code of Criminal Procedure
and is thus not sustainable.
Accordingly,
the appeal is allowed by setting aside the order impugned. The
respondent-accused shall surrender and his bail bonds are cancelled. He shall
be taken into custody during the trial of the offence with which he has been
charged.
......................J.
(M.B.
SHAH) ......................J.
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