New Delhi Vs. Ahmadalieva Nodira  Insc
154 (11 March 2004)
Babu,Arijit Pasayat & G.P. Mathur
out of SLP (Crl.) No.4169 of 2002 ARIJIT PASAYAT, J.
of bail to the respondent (hereinafter referred to as 'the accused') by a
learned Single Judge, of the Delhi High
Court is questioned by the Customs authorities who had purportedly recovered
huge quantity of "Diazepam" - 5 mg." Tablets from her.
background necessary to be noted is as follows:
4.4.2000 Customs authorities detained the respondent-accused, a Uzbeck national
who came to India to do business in garments and was
found carrying large quantity of "Diazepam" - 5 mg. tablets". In
the statement recorded under Section 67 of the Narcotic Drugs and Psychotropic
Substance Act, 1985 (in short 'the NDPS Act') recovery of tablets was admitted
by the accused. She was arrested on 5.4.2000. An application for bail was file
before the Special
Court, NDPS Act which
was rejected taking into account of the embargo placed under Section 37 of the
Act. The accused-respondent filed an application for bail under Section 439
read with Section 482 of the Code of Criminal Procedure, 1973 (in short 'the
Code'). The stand taken essentially was that he tablets seized were not
"psychotropic substance" within the definition of the term in the
Act. The application was opposed by the detaining authorities on the ground
that the article in question was covered by Serial no. 43 of the Schedule to
the Act, the export production manufacture, possession etc. which are
prohibited under Section 8 of the Act. The High Court was of the view that no
definite material was placed to show the materials allegedly recovered conforms
to the chemical name mentioned in the Item no.43 of the Schedule to the Act,
and, therefore, cannot be treated to be a psychotropic substance.
of the Central Control Laboratory which was placed for consideration was held
to be of no consequence.
bail was granted to the respondent on her furnishing personal bond for a sum of
Rs.1,00,000/- with one surety for the like amount to the satisfaction of the
Trial Court. It was further stipulated that the respondent- accused was not to
leave the jurisdiction of the Trial Court without prior permission from that
support of the appeal, Mr. K.K. Sood, learned Additional Solicitor General,
submitted that approach of the High Court is clearly erroneous and overlooks
the restrictions and limitations imposed by Section 37 of the NDPS Act. With
reference to serial no.43 of the Schedule to the Act it is submitted that not
only the seized articles conform to the description but also the laboratory
reports evidentiary value was totally overlooked. There is no appearance for
the respondent-accused in spite of the notice.
would be appropriate to take note of few provisions which have relevance.
Section 2(xxiii) defining "psychotropic substances" and Section 37
dealing with bail 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
bail." As 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. In the case at hand the
High Court seems to have completely overlooked the underlying object of Section
37. It did not take note of the confessional statement recorded under Section
67 of the Act. Description Serial no.43 of the Schedule which reads as follows
has not been kept in view.
No. International Other Chemical name non-proprietary non-proprietary ......
DIAZEPAM 7-Chloro-1, 3-dihydro-1- methyl-5-phenyl-2H-1 4-benzondiazepin-2-one
addition, the report of the Central Revenue Control Laboratory was brought to
the notice of the High Court. The same was lightly brushed aside without any
aforesaid background, this does not appear to be a case where it could be
reasonably believed that the accused was not guilty of the alleged offence.
Therefore, the grant of bail to the accused was not called for. The impugned
order granting bail is set aside and the bail granted is cancelled. The
accused-respondent is directed to surrender to custody forthwith. Additionally
it shall be open to the Trial Court to issue notice to the surety and in case
the accused does not surrender to custody, as directed, to pass appropriate
orders so far as the surety and the amount of security are concerned. It is
made clear that no final opinion on the merit of the case has been expressed in
this judgment, and whatever has been stated is the background of Section 37 of
the Act for the purpose of bail.
appeal is allowed.