Orissa High Court
Rajendra Kumar Senapati, Binodini ... vs State Of Orissa on 23 August, 2000
Author: B.N. Agrawal
Bench: B.N. Agrawal, Chief Justice, P.K. Mohanty
JUDGMENT B.N. Agrawal, C.J.
1. On a reference made by the learned Single Judge in the aforesaid batch of cases, two primal questions arise for consideration, namely, (i) whether non-observance of the provisions required to be observed at the time of search of a person as provided under section 50 of the Act, entitles an accused of the offences under the Act to be released on bail. Another ancillary point connected with this question is as to whether the case diary can be'looked into while disposing of the bail application on the ground of non-observance of the provisions of section 50 of the Act before submission of the charge-sheet/prosecution report and (ii) whether the provisions of section 37 of the Narcotic Drugs and Phychotropic Substances Act, 1985 (hereinafter referred to as "the Act") are applicable with regard to offence punishable under section 20(b)(i) of the Act.
2. The facts of the cases having bearing on the said questions are as follows :
Crl. Misc. Case No. 21 of 1998 .--The prosecution case was that on 27-10-1997, the Sub-Inspector of Police, Satyabadi Police Station in the district of Puri, on getting secret information that the petitioner Rajendra Kumar was in possession of a huge quantity of ganja, bhang and opium in his house at village-Indupur, made a Station Diary Entry, despatched a copy of the same to his immediate superior officer through special messenger, proceeded to the house of the accused in village-lndupur, wherein he found the accused, sitting alone near the door inside the room. The accused tried to ascape, but however, he was restrained, the allegations against him were disclosed and he was asked for a personal search as well as the house search. The accused-petitioner was informed of his right to exercise his option in writing to be produced before the Magistrate or a Gazetted Officer and he having given in writing for being searched before a Gazetted Officer, personal search was made before the Circle Inspector of Police who reached the spot later on. However, nothing incriminating was found in his possession. But during the search of the room in presence of the witnesses, a guny bag kept open containing ganja with flowers and seeds well developed and two guny bags containing bhang kept open on the floor of the room, which were in exclusive and conscious possession of the accused. On weighment, 39 Kgs, of ganja excluding bag, 46 Kgs. of bhang and one small gunny bag containing 26 Kgs. of ganja, a cash of Rs. 6,2000/-, which was-suspected to be sale-proceeds of the contraband articles, and two sets of weights and measures were seized. The accused was arrested and produced before the lower court and was remanded to judicial custody. The bail application having been rejected.
In support of prayer for bail, contentions were raised that the mandatory provision of section 50 of the Act having not been complied with, the criminal proceeding is vitiated and as such, the petitioner was entitled to be released on bail. Reliance was placed on a decision of the learned Single Judge in Umakanta Patel v. State of Orissa, 1996 (10) O. C. R. 372. But however, it was pointed out by the learned State Counsel that the said decision is in conflict with the view taken in a batch of cases in Jaya Krishna Bag and others v. State reported in 1996(10) O.C.R. 154, in which the view taken in Fakira Sundari and others v. State, 1995(8) O. C. R. 320 and in Narahari Das v. State, 1995(9) O.C.R. 121, was followed, for which the case was referred for consideration of the larger Bench in Criminal Misc. Case No. 2949 of 1996. This petition having involved similar question was also referred to the larger Bench.
It appears that a submission was also made that since the alleged offence is under section 20(b)(i) Of the Act, the. bar for grant of bail contemplated under section 37(1) is not applicable and as such, the bail application may be considered as one under section 439, Cr. P. C.. Learnad counsel relied on the decision in Gunanidhi Chand v. State of Orissa; 1997(13) O. C. R. 331 in which a view was taken that the bar under section 37(1) has no application to a case punishable under section 20(b)(i) of the Act. However, the Court having found that the decision rendered in Rajendra Panda v, State; 1992 (I) Crimes 79 was followed in subsequent decision of N. Nageswar Rao v. State, 1996(11) O. L. R. 211, in which the learned Single Judge took the view that the bar under section 37(1) applies also to a case punishable under section 20(b)(i) of the Act, which is in conflict with the said decision, referred the matter for consideration by a lerger Bencb and that is how this matter is before this Court.
Crl. Misc, Case No. 2940 of 1998 : 3. The accused-petitioner was detained in custody in connection with a case registered against him for having committed the offence punishable under section 20(b)(i) of the Act. In course of bearing, the learned counsel for the petitioner raised a contention that the petitioner was entitled to be released on bail solely on the ground of non-compliance of the mandatory provision of section 42 (1) and (2) and section 50 of the Act, since the petitioner will be entitled to an order of acquittal and therefore one of the major conditions envisaged under section 37 of the Act being satisfied, the petitioner was entitled to bail on that ground alone. The learned Single Judge having found conflict of decision in Jayakrishna Bag and others v. State of Orissa. 1996 (1) O. C. R. 154 and Balbir Singh v. State, 1996 (II) O. C. R. 9, has referred the matter for consideration of a larger Bench as to whether the bail application can be granted on the ground of non-observance of the mandatory provision of the Act by looking into the case diary until the charge-sheet/prosecution report is filed.
4. Crl Misc. Case No. 2844 of 1996 :-- The points involved in the case being similar to the aforesaid the cases, the matter is directed to be heard along with the aforesaid Criminal Misc. Cases.
5. The learned counsel appearing for the petitioners in all the cases submitted that Article 21 of the Constitution of India provides that no person shall be deprived of the life or personal liberty except according to procedure enshrined by law. It is settled law that the procedure to curtain life and liberty of a person should be just, fair and reasonable and it should be observed strictly and its non-conservance will prejudice the affected person. In a penal provision, the mandatory procedure is to be followed strictly and in case of non-observance, the prejudice is writ large and the benefit of non-observance of the procedure is available to the accused at all stages of the proceeding. In other words, if the mandatory procedure has not been followed, then the accused is entitled to get the benefit of the same even at the initial stage while considering the prayer for bail. If it is shown prima facie by the accused that the mandatory procedure as contained in section 50 of the Act has not been followed, then the accused discharges the burden put on him under section 37 of the Act and is entitled to be released on bail. Though the accused has no access to the case diary prior to the submission of the charge-sheet or prosecution report, there is nothing in the Code of Criminal Procedure (hereinafter) referred to as "the Code") to preclude or prevent the Court from perusing-the same for the limited purpose of coming to a prima facie conclusion as to whether the mandatory provision of section 50 of the Act has been complied with or act while considering the question of bail. They further submitted that section 37 of the Act is not attracted in a case where the offences are punishable under section 20(b)(i) of the Act of the said provision is applicable only when the offence is punishable for five years or more, meaning thereby the minimum punishment to attract the applicability of section 37 is five years and as the punishment provided under section 20(b)(i) is for a term extending upto five years, the provision of section 37 of the Act is not attracted and prayer for bail of the accused is to be considered de hors the aforesaid section.
6. Learned counsel for the State did not dispute the fact that the procedure curtailing life and liberty of the person should be just, fair and reasonable, but contended that the safeguards provided under section 50 of the Act have been followed in those cases. He further submitted that the question regarding non-observance of the provisions under section 50 of the Act cannot be gone into at the stage of court. It has to be seen at the time of trial, when the prosecution gets an opportunity to lead evidence as to whether the provision of section 50 of the Act has been complied with or not. The accused persons are not entitled to get bail only on the basis of mere allegation of non-observance of the provisions contained in section 50 of the Act, which has to decided at the time of trial after the evidence is led by the prosecution. He further submitted that the question of bail has to be considered in the light of the special provisions contained, in section 37 of the Act and a mere allegation of non-observance at the initial stage will not discharge the burden on the accused as provided under section 37 of the Act for release on bail. He further submitted that as the accused has no access to the case diary before submission of the charge-sheet or provision report, the same cannot be looked into to decide the question of non-observance of provision contained in section 50 of the Act. The provision of section 37 of the Act is attracted with regard to an offence punishable under section 20(b)(i) of the Act as sub-section (1) itself imposes fetters on the exercise of the power of the Court to grant bail in respect of offences punishable for a term of imprisonment of five years or more the Act. The said section does not speak of a minimum sentence of five years for its applicability. It provides that the offences should be punishable for a term of five years or more, which means the offences capable of punishment for a term of imprisonment of five years or more, There is no requirement that the accused must be published for the alleged violation for a period of five years.
7. Before adverting to the respective submissions advanced at the Bar, it is relevant to mention briefly about the aims and objects and the relevant provisions of the Act having an important bearing on the question in controversy. Drug abuse and drug trafficking is a world-wide phenomenon. It has posed serious danger to the society. It kills the health and destroys the wealth. The drug abuse and the drug trafficking attracted the attention of several countries in the world. Several international conventions and treaties were held on the Narcotic Drugs and Psychotropic Substances. The Government of India also adopted the said treaties and Conventions. It was found that the provisions as existing were not sufficient to deal with the, menace of drug abuse and drug trafficking and this necessitated the enactment of the present Act making stringent provisions with regard to control and regulation of operations relating to Narcotic Drugs and psychotropic Substances and other matters as evident from the preamble, which runs as follows :
"An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drug and phychotropic substances, (to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of International convention on Narcotic Drugs and Psychotropic Substances) and for matters connected therewith,"
8. The scope and object of the Act was considered by the Apex Court in the case of Raj Kumar Kerwal v. Union of India, reported in Judgment Today 1990 (1) S. C. 503 and it was held as follows :
"7. ......The Act was, therefore, enacted, as is provident from its preamble, inter alia, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and to provide for deterrent punishments, including the forfeiture of property derived from or used in illicit traffic of such drugs and substances."
9. Recently a Constitution Bench of the Apes Court in the case of State of Punjab v. Baldev Singh, reported in A. I. R. 1999 S. C. 2378 also held as follows :
5. ......The Parliament with a view to meet a social challenge of great dimensions, enacted the N.D P.S. Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalty particularly for trafficking and various other offences......"
10. The Act, 1985 was amended in 1988 with effect from 29th May, 1989 and deterrent punishments were provided with regard to alleged offences and offences under the Act were made cognizable and non-bailable and stringent conditions were put under section 37 of the Act for grant of bail.
11. The law with regard to interpretation of penal statutes well-settled. The legislature enacts law with a purpose. It may be either to effect beneficial policies or to control certain public evil. When the Act affects the liberty of the subject it should be construed strictly and if its meaning is plain and clear, then full effect is to be given to it. If a subject or case is not covered by adopting reasonable interpretation or construction, then no attempt should be made to include the subject or the case not covered by it. However, if the words used in the penal statute have more than one meaning on a reasonable construction, the Court must lean towards that construction which exempts the subject from penalty rather then the one which imposes penalty. It there is a lacuna or loophole in the Penal Statute, it is not the duty of the Judge to cure it. Lord Justice James in the case of Dyke v. Elliot, (1872). L. R. 4 P. C. 184, page 191 stated as follows :
"......No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip; that there has been a cases omissus", that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of, on the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words, and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common sense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument."
12. The said principle of law has been approved by the Apex Court in the case of M. Narayanan v. State of Kerala, reported in A. I. R. 1963 S. C. 1116.
13. The duty of the interpretation is to unvail the intention of the Legislature. The Court has to interpret the provision in such a way so as to advance intendment and thwart the mischief. The Apex Court in the case of State of Maharashtra v. Mohd. Yakub, reported in A. I. R. 1980 S. C. 1111 dealing with the penal Statute held as follows ', "The penal provision is to be interpreted in such a manner which would suppress the mischief, promote their object, present their subtle evesion and foil their artful circumvention."
14. The relevant provisions for the purpose of these cases are sections 20, 37 and 50 of the Act, and they read as follows :
"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) cultivated any cannabis plant; or
(b) produces, manufactures, possesses, sails, purchases, transports, imports inter-State, exports inter-State or uses cannabis shall be punishable.-
(i) where such contravention relates to ganja, or its 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 then 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) Not-withstanding 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 or 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."
"50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without un-necessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition, is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred Co in subsection (1).
(3) The Gazetted Officer of the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) no female shall be searched by anyone excepting a female."
15. Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure enshrined by law, It is settled law that procedure provided to deprive personal liberty should be just, right and fair. The procedure within the meaning of Article 21 has to meet the test of one or more fundamental rights as provided under Article 19. It has to be tested on the touch-stone of reasonableness in order to see whether it is in confirmity with Article 14 or not (See Maneka Gandhi v. Union of India, reported in A. I, 1976 S. C. 597).
16. The Act has been enacted to control the menace of Drug abuse and Drug trafficking. It provides deterrent punishments, several safeguards have been provided therein to protect the citizens from harassment and to give credibility to the procedure or the seizure of the illicit drugs and trafficking substances. Section 50 is one of such provisions and it provides conditions under which search of a person is to be conducted in terms of the provisions contained in sections 41, 42 or 43 of the Act. Sub-section (1) of section 50 of the Act provides, inter alia, that when a person is about to be searched by an empowered officer then the empowered officer shall take him to the nearest Gazetted Officer or the Magistrate for the search of the person and seizure if the person to be searched so required. Subsection (2) provides that when a request is made by the suspected person, the empowered officer will detain such person until he should be brought before such Gazetted Officer or the Magistrate. Sub-section (3) provides that the Gazetted Officer or the Magistrate before whom such person is brought, will discharge him if he sees no reasonable ground, for search and if he finds reasonable ground for search then he shall direct the search to be made. Sub-section (4) provides that no female shall be searched by anyone excepting a female. This provision applies only in case of search of a person.
17. The said section was subject matter of interpretation by the Apes Court as well as by the different High Courts. Divergent views there taken with regard to the effect of non-observance of the safeguards provided under the said section. There was also divergent opinion as to whether it is obligatory on the part of the officers searching the person to inform him about his right to demand that the search be conducted in presence of a Gazetted Officer or a Magistrate. Two-Judge Bench of the Apex Court in the case of State of Punjab v, Balbir Singh, reported in (1994) 3 S. C. C. 299, held that section 50 is mandatory and non-compliance of the aforesaid provision will vitiate the trial. It also held that it is incumbent on the part of the officer concerned to inform the person to be searched of his right to demand his search to be conducted in presence of a Gazetted Officer or a Magistrate. The said judgment was approved by a three-Judge Bench in the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, reported in (1995) 3 S, C. C. 610, The same view was reiterated in the case of Ali Mustaffa Abdul Rahmdn Moosa v. State of Kerala, reported in (1994) 6 S, C. C. 569. A discordant note was struck by the Supreme Court in the two decisions rendered by a two-Judge Bench in the case of State of H. P. v. Prithi Chand, reported in (1996) 2 S. C. C. 37 and in the case of State of Punjab v. Labh Singh, reported in (1996) 53. C. C. 520.
18. The said question arose for consideration in the case of State of Punjab v. Baldev Singh, reported in A. I. R. 1999 Supreme Court 2378 and the same was referred to the Constitution Bench and the Constitution Bench has held in paragraph 55 as follows :
"On the basis of the reasoning and discussion above, the following conclusions arise :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of section 51 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing, (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused ;
(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of section 50 of the Act :
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the Investigating Agency must follow the procedure as envisaged by the Statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curved. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search- operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in branch of the safeguards provided by section 50 at the trial would render the trial unfair.
(5) That whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the court on the basis of evidence led at the trial. Finding on that issue, one way or the other would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of section 50 and particularly the safeguards provided therein were duly complied with, it would hot be permissible to cut short a criminal trial.
(6) That in the context in which the protection has been incorporated in section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from subsection (1) of section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law :
(7) That an illict article seized from the person of an accused during search conducted in violation of the safeguards provided in section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search to be relied upon by the prosecution in other proceedings, against an, accused not withstanding the recovery of that material during an illegal search ;
(8) A presumption under section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of section 50. An illegal search cannot entitle the prosecution to raise a presumption under, section 54 of the Act;
(9) That the judgment in Pooran Mal's case (A.I.R. 1974 S.C. 348) cannot be understood to have laid down that as illicit article seized during a search of a person or prior information conducted in violation of the provisions of.section 50 of the Act can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search.
(10) That the judgment in Mustaffa's case (1994 A.I.R. S.C.W. 4393 : A. I. R. 1995 S. C. 244) correctly interprets and distinguishes the judgment in Pooran Mal's case (A.I.R. 1974 S.C. 348) and the broad observations made in Kirthi Chand's case (1996 A.I.R. S.C.W. 422 : A.I.R. 1996 S.C. 977 : 1996 Cri L.J. 1354) and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case."
19. Thus, the settled law is that it is the duty cast upon the concerned officer at the time of search to inform the suspected accused of his right of being taken to the nearest Gazetted Officer or to the nearest Magistrate for making search and failure to inform the suspected person will prejudice him. If the person to be searched is not informed of his right or if he is informed of the aforesaid right and he opts for the same and search of the person is not conducted before the Gazetted Officer the Magistrate, , the same will not vitiate the trial but would tender the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused when the sole material for conviction is the possession of the illicit article recovered from the person in violation of the provisions of section 50 of the Act. The question as to whether the requirement of section 50 of the Act has been complied with or not, has to be gone into at the trial on the basis of the evidence. Without giving an opportunity to the prosecution to show as to whether safeguards provided under section 50 of the Act have been complied with or not it is not permissible to cut short a criminal trial. The Apex Court did not go into the question as to whether the provision of section 50 of the Act is mandatory or directory but held that failure to inform the concerned person of his right as emanating in section 50 will render the recovery of the contraband goods suspect and the conviction and sentence of an accused bad and unsustainable in law. Recovery of illicit article during the search of an accused or a person conducted in breach of section 50 cannot be used as an evidence of proof of unlawful possession of the same by the accused though that may be used or relied upon by the prosecution in other proceedings.
20. Thus, in view of the decision of the Constitution Bench aforementioned, it is necessary to refer to the cases relied upon by the learned counsel for the parties on the question as to whether the provision of section 50 is mandatory or directory. The effect of its non-observance has been held to be serious. However, the question as to whether the safeguards provided under section 50(1) have been observed or not has to be gone into at the time of trial after giving opportunity to the prosecution to lead evidence.
21. The question for consideration in this cases is as to whether at the stage of bail under the provisions of the Act, the accused is entitled to get bail due to non-observance of the safeguards as provided under section 50(1) of the Act. Section 37 of the Act makes the offence cognizable and non-bailable and it puts stringent condition in addition to the conditions as provided under the Code of Criminal Procedure (hereinafter referred to as 'the Code') for grant of bail. In the Code, section 437(1)(i) provides that if there appears reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, then the Court, other than the High Court or the Court of Session, before whom the accused is produced, shall not release the accused on bail. The said restriction does not apply to exercise of the discretion of bail by the Sessions Judge or the High Court, which have been vested with the power to grant bail under section 439 of the Code. In other words, no fetter has been put on the discretion of the Court of Session or the High Court to grant bail in non-bailable offences. This does not mean that the power to grant bail is enfettered. Once the Court is vested with discretionary power, it has to exercise the same judiciously and on well-settled grounds.
22. In the words of Benjamin Cardozo (Yale University Press (1921) ), "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuait of his own ideal of beauty or of goodness, He is to draw his inspiration from consecrated principles. He is not to yield to opasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life'. Wise enough in all conscicunce is the field of discretion that remains."
23. While considering the question of bail, the court has to consider the gravity or nature of the offence, part played by the accused, punishment provided for the offence and that the accused may not flee away from justice or thwart the course of justice. So far as the offences under the Act are concerned, in addition to those considerations, some additional restrictions or deterrent conditions arc put while considering the prayer for bail. Taking into consideration the seriousness of the crime, it provides, inter alia, that if a person accused of an offence punishable for a term of imprisonment for five years or more, he shall not be released on bail when the -bail is opposed by the Public Prosecutor unless the court is satisfied that there is reasonable ground for believing that he is not guilty of such effence and that he is not likely to commit any offence while on bail. Subsection (2) provides that the limitations of grant of bail specified in section 37(1)(b) are in addition to the limitation provided under the Code.
24. In Narcotics Control Bureau v. Kishan Lal, reported in A.I.R. 1991 S. C. 558, it was held by the Supreme Court that the powers of the High Court to grant bail under section 439 of the Code are subject to the limitations contained in the amended section 37 of the Act. The Act being a Special Act, it prevails over section 439 of the Code. The relevant paragraph in this connection is as follows :
"6. 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 and as already noted it was 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 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 inconsistency between section 439, Cr.P.C. and section 37 of the NDPS Act, section 37 prevails......"
As already noted, section 37 of the NDPS Act 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 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."
25. In the case of Union of India v. Thamishrasi, reported in 1995(2) Crimes 523, the question for consideration was as to whether the provision of grant of bail as contained in section 167(2) of the Code will be applied in case of accused arrested for commission of the offences under the Act. Dealing with the said matter, the Apex Court considered the scope of section 37 of the Act and held that under section 37 of the Act the burden is on the accused to show the existence of reasonable ground for believing that he is not guilty of the offence. Section 37 of the Act is in the nature of condition precedent for exercise of the power to release the accused on bail so that the accused shall not -be released on bail unless the court is satisfied that there are reasonable ground to believe that he is not guilty of the offence.
26. Thus, while considering the question of bail of accused facing prosecution under the Act, the conditions mentioned under section 37 have to be fulfilled apart from the other considerations relevant for grant of bail and one of the conditions is that the accused has to satisfy the court about the existence of the grounds for believing that he is not guilty the court will arrive at the said satisfaction after taking into consideration the relevant facts with regard to giant of bail. No final determination is required to be made at the stage of bail nor an elaborate documantation of the marits has to be gone into.
27. A Constitution Bench of the Apex Court in the case of Baldev Singh (supra), as stated above, has held that non-observance of the safeguards at the time of search of the person of the accused as provided under section 50 of the Act neither vitiates the trial nor does it finish the trial at the threshold. It will affect only the conviction and sentence of the accused, which is to be judged at the time of trial after giving an opportunity to the prosecution to lead evidence. In such a situation, it is difficult to hold that the aforesaid breach of safeguards will be the sole ground to release the accused on bail. If the bail will be granted on that ground alone, then that will defeat the purpose of the Act, specially the requirement of section 37 of the Act.
28. Thus, there is no difficulty in holding that the breach of the safeguards as provided under section 50 of the Act by itself twill not be a ground to release the accused on bail. However, this does not mean that this ground is to be excluded altogether while considering the question of bail under the provisions of the Act. If on proof of this ground, conviction and sentence may be set aside at the time of trial then to exclude it altogether while considering the question of bail will also not be just and proper. While considering the question of bail under the Act, the Court has to arrive at a satisfaction that prima facie there are reasonable grounds for believing that the accused is not guilty of such offence. The burden is on the accused to prove that prime facie be is not guilty of the offence. The court while arriving at the aforesaid satisfaction has to take into consideration the relevant factors governing the grant of bail under the Code as well as under section 37 of the Act. Such considerations, as stated above, will include the nature of the crime, gravity of the offence, conduct of the accused, breach of the statutory provision etc.. So, at the stage of consideration of bail, the Court will also take the aforesaid breach of safeguards as one of the relevant grounds. To what extent that will be relevant for granting bail to the accused in a particular case will depend upon the facts and circumstances of the case.
29. So far as the question as to whether while considering the question of bail, the case diary can be looked into or not before submission of the charge sheet or prosecution report is concerned, learned counsel for the State relied upon the observation made by the Supreme Court in the case of Thamishrasi (supra) wherein the Apex Court held that till the complaint is filed, the accused is supplied no material, from which he can discharge the burden placed On him by section 37(1)(b) of the Act. The said observation cannot be read to mean that as the accused is not supplied with material/case diary prior to submission of the charge sheet, the materials collected during investigation cannot be looked into to decide the question as to whether accused has discharged the burden under section 37(1)(b) of the Act.
30. In our view, the said observations were made in a different context while dealing with the question as to whether provision of section 37 of the Act limits the power of the court to grant bail under section 167(2) of the Code. The question as to whether case diary can be looked into or not for the purpose of bail on merit was not a subject matter of determination in that case. No doubt, the accused is not entitled to the copy of the case diary till the submission of the charge sheet or final form but that docs not preclude the court from perusing the same while considering the question of bail. There is nothing in the Code of the Act which prevents the court from perusing the case diary while considering the points raised on behalf of the accused and the prosecution at the time of hearing of bail matter. Thus, the court can look into the case diary to consider the question of non-observance of the provisions of section 50(1) of the Act.
31. Thus, while considering the question of bail under section 37 of the Act, the non-observance of the safeguards as provided under section 50 of the Act will not be the sole consideration for grant of bail. There is nothing in the Code or the Act to prevent the court from perusing the case diary prior to submission of final form with a view to consider the submissions advanced on behalf of the accused or the prosecution including the question of non-observance of provisions of section 50(1) of the Act. In this view of the matter the decision rendered in Jaya Krushna Bag and others v. State of Orissa (1996) 10 O. C. R. 154 to the extent it declares that once recovery is shown, the accused can be said to be guilty and the prosecution discharged of the initial burden and then it is for the accused to show that he is not guilty by producing materials for record but these records can only be placed after, he is given the police papers after filing of charge sheet does not lay down correct proposition of law.
32. The other question is as to whether the restrictions imposed under section 37(1)(b) of the Narcotic Drugs and Psycho-tropic Substance Act (hereinafter referred to as 'the Act') covers the cases in respect of offences punishable for "a term which' may extend to five years" as provided under section 20(b)(i) of the Act.
33. As stated above, the offence under the Act was made cognizable and non-bailable by amendment by Act 2 of 1989 and two restrictions were put on the grant of bail Criminal Procedure. It is clear that these restrictions are applicable only in the case of offences punishable for a term of imprisonment for five years or more.
34. Under the scheme of the Act sections 15 to 35 deal with offences and penalty. Except the offences punishable under sections 20(b)(i), 26, 27 and 32 of the Act, the offences are punishable for ten years or more with fine. Section 20 contains a provision with regard to contravention in relation to cannabis plant and cannabis and two punishments are provided with regard to violation under these sections. Relevant provision for consideration is section 20(b)(i) of the Act. According to the said provision, with regard to contravention mentioned therein, the punishment is provided for a term which may extend to five years. Section 37(1)(b), on the other hand, provides that limitations for grant of bail will be applicable to a person, who is an accused for an offence punishable for a term of five years or more.
35. The word punishable' is not defined under the Act, According to Law Lexicon compiled by P. Ram Natha Aiyer, Reprint Edition 1887, the word 'punishable' as used in the Statute declares that certain offences are punishable in a certain way means liable to be punished in the way designated. , In the Webster's Internatienal Dictionary, the word 'punishable' means deserving or capable of being punished or liable to be punished by law or right. In Bouvier's Law Dictionary, the meaning given of the word 'punishable' is "liable to punishment".
36. The said word came up for interpretation before the Apex Court in the case of Sube Singh v. State of Haryana, reported in A. I. R. 1988 S. C. 2235. There the question for consideration was as to whether the offence as defined under section 2(4) of the Punjab Borstal Act includes the offences punishable under section 302 pf the I. P.C. , The said provision defined the offence to mean an offence punishable with transportation or rigorous imprisonment under the Indian Penal Code other than an offence punishable with death. The Apex Court held that as punishment provided under sestion 302 of the Penal Code is death also, the provisions of the said Act are not applicable in case of punishment under section 302 of the I. P. C. . In paragraph 9 of the said judgment it was held as follows :
"9. The word 'punishable' is ordinarily defined as deserving of or capable or liable to punishment, punishable within statute providing that defendant may have ten peremptory challenges if offence charged is 'punishable' with death or by life imprisonment ; means deserving of or liable to punishment; capable of being punished by law or right, may be punished, or liable to be punished, and not must be punished,"
37. Thus, the word 'punishable' means "capable of being punished or liable to be punished", and not must be punished. Any person who is capable or liable to be punished up to five years or more is covered by the provisions of section 37 of the Act. It is not necessary that the person accused of an offence .must be punished upto the maximum period of five years.
38. Under the Scheme of the Act, section 20(b)(i) is the only provision, which provides for punishment upto five years. Some of the offences are punishable for a period less than five years and majority of the offences, as stated above, are punishable with five years and above. The words 'punishable with five years' under section 37 indicate the intention of the Legislature to include section 20(b)(i) also within the provision of section 37 of the Act, otherwise, there was no need of using the words ''five years or more1' in the aforesaid section.
39. At this stage it will be relevant to refer to the cases relied by the learned counsel for the parties in support of their contentions,
40. In the case of Gunanidhi Chand v. State of Orissa, reported in (1997) 13 O. C. R. 33 it is held that the words "term of imprisonment for five years or more" means an offence punishable with minimum sentence of five years and as such the prohibition under the aforesaid section is not attracted with regard to an offence under section 20(b)(i) of the Act. Coming to the aforesaid conclusion, his Lordship relied upon a Division Bench decision of the Patna High Court in the case of Kamlesh Kumar v. State of Bihar, reported in 1994 (3) Crimes 671 as well as upon the judgment of a learned Single Judge of Karnataka High Court in the case of A. V. Dharma Singh and others v. State of Karnataka, reported in 1993 Criminal Law Journal page 98. Contrary view has been taken by this court in the case of Rajendra Panda and another v. State of Orissa, reported in 1992 (1) Crimes 79 and N. Nageshwar Rao v. Union of India, reported in 1996 (II) O. L, R. 211, wherein it has been held that the bar of section 37 of the Act is applicable to an offence punishable for an imprisonment for a term, which may extend to five years.
41. The Gujarat High Court in the case of. Dahya Bbhai Golak Bhai v. State of Gujarat, reported in 1991 Drug Cases 383, Kerala High Court in the case of Piter v. State of Kerala, reported in 1993 Drug Cases 158, the Madras High Court in the case of Suderesan v. State of Madras. reported in 1993 Criminal Law Journal 3342, the Rajasthan High. Court in the case of Gena Ram v. State of Rajasthan, reported in 1994(1) Crimes 281 and Allahabad High Court in the case of Union of India v. Darshan Kumar, reported in 1997 Cr. L. J. 4095 have taken the same view as in the case of Rajendra Panda (supra), which has been reported in the case of N. Nageshwar Rao (supra).
42. While interpreting the provision, the court cannot ignore the mischief which is sought to be remedied by making stringent provisions regarding grant of bail. The said section does not say that offence should be punishable with a minimum sentence of five years or more. It only says the offence punishable with five years or more. The word "punishable", as stated above, means capable or liable to be punished and as offence under section 20(b)(i) is also liable to punishment upto five years, section 37 is attracted in a case under section 20(b)(i) and the view taken by this court in the case of Gunanidhi (supra) does not lay down the good law.
The points of reference having thus been answered, now the Misc. Cases be placed before the appropriate Bench for disposal in accordance with law.
P.K. Mohanty, J.
43. I agree.
44. Ordered accordingly.