Punjab-Haryana High Court
Rafiq Mohd. And Anr. vs State Of Punjab on 6 May, 1994
Equivalent citations: 1994CRILJ3366
ORDER V.K. Bali, J.
1. The petitioners who seek bail are alleged to have been in possession of 85 bags of poppy husk, each bag containing 35 kgs. The bail is asked for on the solitary ground that the police has not put up the challan within 90 days as required under Section 167(2) of the Code of Criminal Procedure. ' Reliance of the learned counsel is upon a decision rendered in Criminal Misc. No. 15789-M of 1993 (Ajit Singh v. State of Punjab) on 25th January, 1994 by this Court. It is argued that the Bench deciding the aforesaid matter relied upon Ponnell Nawa v. State, 1987 (1) Rec CR 35 : (1986 Cri LJ 2081), a Division Bench judgment of the Delhi High Court; Shivanna v. State, 1992 (3) All Ind Cri LR 204; Surinder Kumar v. State of Punjab, 1976 Pun LR 643 : (1977 Cri LJ 1266) (FB); Baldev Singh v. State of Punjab, 1975 Pun LR 534 : (1975 Cri LJ 1662) and Rajni Kant Jiwan Lal Patel v. Intelligence Officer N.C. Bureau, . The learned counsel also relies upon the ratio of the judgment in Immam and another v. C.B.I. New Delhi, 1993 (1) Cri LR 101.
2. Mr. Masih, the learned Assistant Advocate General, Punjab Vehemently opposes' the prayer for bail and contends that the powers of the Court to grant bail under Section 439, Cr.P.C. are subject to the limitations contained in the amended Section 37 of the Narcotic Drugs and Psychotropic Substances 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. For his aforesaid stand the learned Assistant Advocate General relies upon the recent decision of the Supreme Court in Narcotic Control Bureau v. Kishan Lal, , and a Full Bench decision of Madhya Pradesh High Court in Ram Dayal v. Central Narcotic Bureau Gwalior, 1993 Rec Cri R 264 : (1993 Cri LJ 1443).
3. The Full Bench of Madhya Pradesh High Court in Ram Dayal's case (supra) while dealing with Narcotic matter and referring to several judgments including that of the Supreme Court in Narcotic Control Bureau v. Kishan Lal's case (supra), came to the conclusion that if an accused is arrested under Section 18 of the NDPS Act, he is not entitled to bail from the High Court as a matter of right if challan is not put in Court within 90 days as Section 167(2) proviso is not applicable to proceedings under NDPS Act.
4. The Delhi High Court by a common order in two petitions filed under N.D.P.S. Act, 1985 held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended provisions of Section 37 of the NDPS Act were not applicable to the High Court. Narcotics Control Bureau challenged the aforesaid order of the High Court and the appeals filed by it were allowed by the Supreme Court in Narcotics Control Bureau v. Kishan Lal, (supra). The facts of the case reveal that petitioners therein were arrested 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. They filed a writ as also criminal miscellaneous in the High Court seeking bail firstly on the ground that they were entitled to 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. The learned single Judge referred the matter to the Division Bench which held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as fetters on the High Court in exercise of powers under Section 439, Cr. P.C. for granting bail. It is in these circumstances that the only limited question to be decided by the Supreme Court was as to whether the view taken by the High Court was right or wrong. The Supreme Court, after noticing various provisions and, in particular, Section 37 of the NDPS Act and Section 439 of the Cr. P.C., came to the conclusion that "Section 37 as amended starts with a non obstante clause stating that notwithstanding anything contained in 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 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 the Cr. P.C. regarding bail, it cannot be said 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 the 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.
5. In so far as reliance of learned counsel on Rajnikant Jivanlal Patel's case (supra) is concerned in view of this Court, the same is not applicable to the facts of the present case. The petitioners of the said case were released on bail by the Enquiry Magistrate under proviso (a) to Section 167(2) of the Cr. P.C. After filing of the charge-sheet, the High Court ordered that re-arrest by cancelling the bail. This order of the High Court was challenged before the Apex Court. It is true that charge against the accused in the aforesaid case was under Sections 21, 23 and 29 of the NDPS Act. They had filed an application for bail on the ground that the charge-sheet was filed after the expiry of 90 days of their arrest. The Magistrate enlarged them on bail on their furnishing bonds. When the efforts of the prosecution to have the bail cancelled could not succeed, before the Magistrate, they moved the Delhi High Court under Section 439(2) read with Section 482 of the Cr. P.C. The High Court, as mentioned above, cancelled the bail. The Supreme Court held that "an order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default. Indeed it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2), proviso (a) thereto is absolute. It is a legislative command and not Court's discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at this stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order to bail and communicate the same to the accused to furnish the requisite bail bonds. The accused cannot, therefore, claim any special right to remain on bail If the investigation reveals that the accused has committed a serious offence and charge-sheet is filed, the bail granted under Proviso (a) to Section 167(2) could be cancelled.
6. On the basis of the judgment of Supreme Court in Narcotics Control Bureau v. Kistian Lal's case (supra), the contention of learned counsel is that this Court is not exercising its power to grant bail on merit and, therefore, the question of invoking the provisions of Section 37 of the N.D.P.S. Act at this stage does not arise. The bail is being asked for on the default of the prosecution as was the case before the Supreme Court and inasmuch as the right to bail under Section 167(2) proviso (a) thereto is absolute, there is no discretion or power left with this Court so as not to release the petitioners on bail. The learnedxounsel for his aforesaid contention based upon the judgment of the Supreme Court in Rajnikant Jivanlal Patel's case (supra) relies on the observations made by the Delhi High Court in Immam v. C.B.I. New Delhi 1993 (1) CLR 101. The aforesaid decision of the Delhi High Court, no doubt, supports the line of arguments adopted by the learned counsel.
7. In Crl. Misc. No. 15789-M of 1993, Ajit Singh v. State of Punjab, decided on January 25, 1994, the learned single Judge of this Court framed a very significant question in the following terms :-
The significant question raised in this petition is whether the accused loses the right to be released on bail after the expiry of the maximum period laid down in the proviso to Section 167(2) of the Code of Criminal Procedure if the challan is presented before the release but after the expiry of that period ?
The reading of the judgment would reveal that it is the right of accused to be released on bail after the expiry of 90 days irrespective of the challan having been put thereafter that was under consideration. It is, no doubt, true that, the petitioner of the said case was arrested under Section 18 of the N.D.P.S. Act for having been found in possession of 10 Kgs. of contraband opium but the limitation imposed under Section 37 of the N.D.P.S. Act which has been noticed above and starts with non-obstante clause, was not noticed nor was there any discussion with regard to the scope and applicability of the said Section i.e. as to whether the said Section prevailed over the provisions contained in section 167 of Cr.P.C.
8. Division Bench of Delhi High Court in Powell Nawana Ogechi v. The State, 1987 (1) RCR 35 : (1986 Cri LJ 2081) framed the following question for disposal:-
Whether an accused person against whom the charge-sheet has been filed within 90 days or 60 days, as prescribed by proviso to Section 167(2) of the Cr.P.C. of his judicial custody is entitled to bail as of right and whether any discretion is left with the Court to refuse bail after the period of 90 days or 60 days of his custody and whether Section 10 of. the General Clauses Act can be brought in aid in cases in which the Charge-sheet is not filed within 90 days and 60 days as envisaged by Section 167(2) of the Code of Criminal Procedure.
It is true that in this case as well the petitioner was arrested under-Sections 17/22/61/85 of the N.D.P.S. Act. He sought bail on the dint of provisions contained in Section 167(2) of the Cr.P.C. by pleading that an absolute right of being offered bail had accrued to him because of the failure of the investigating agency to file the charge-sheet against him within 90 days. However, while dealing with the matter, once again, the provisions contained in Section 37 of the N.D.P.S. Act were not noticed and obviously the effect of the same did not come in for discussion.
9. The Full Bench of this Court in Baldev Singh v. State of Punjab, 1975 PLR 534 : (1975 Cri LJ 1662) was dealing with the case of a person who was found to be possessing incriminating documents purporting to relate to various Army Units deployed in the Ferozepur area and a case was registered against him under Section 3 of the Official Secrets Act and he was taken into custody. This judgment, for the reason that there is no provision in the Act under which the petitioner of the said case was booked which may be analogous or pari materia to Section 37 of the N.D.P.S. Act, cannot come to the rescue of the petitioner. Another Full Bench decision of this Court cited as Surinder Kumar v. The State of Punjba, 1976 PLR 643 : 1977 Cri LJ. 1266) relied upon by the learned counsel for, the petitioner, in view of this Court, also cannot be pressed into service in view of authoritative pronouncement of the Supreme Court in-Narcotics Control Bureau v. Kishan Lai's case (supra) which directly deals with the matter that is in issue before this Court. The facts of Surender Kumar's case (supra) reveal that Surender Kumar and five others were arrested for the alleged contravention of the provisions of Rule 43 of the Defence and Internal Security of India Rules, 1971 and Section 188 of the Indian Penal Code. Relying on proviso (a) to Sub-section 167 of the Code of Criminal Procedure, 1973, they applied for their release on the ground that they had been under detention for more than 60 days. It is true that Section 37 of the Defence and Internal Security of India Act, 1971 envisages that the provisions of the Act i.e. 1971 Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or m any instrument having effect by virtue of any enactment other than this Act and that the effect of Section 37 of 1971 Act did come for consideration before the Full Bench. In paragraph 7, this is how the learned Judges of the Full Bench of this Court proceeded with the matter at page 1268 of Cri.
Learned counsel for the petitioner vehemently urged that no where have the rules curtailed the operation of proviso (a) to Section 167(2) of the Code. The learned Deputy Advocate General was unable to repel the contention that neither in the Act nor in the Rules was there anything overriding the proviso in question to Section 167(2). All the same, the learned Deputy Advocate General endeavoured to defend the detention of the petitioners beyond the expiry of 60 days on the strength of Rule 184, which is in the following terms :-
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 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 on his bond, unless:-
(a) The prosecution has been given an opportunity to approach the application for such release, and
(b) where any such provisions of these rules or orders made thereunder as the Central Govt. or the State Govt. may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty to such contravention.
10. The learned counsel appearing for the State vehemently contends that even if Section 37 of 1971 Act contains similar provisions as are there in Section 37 of the N.D.P.S. Act, yet there being a direct judgment of the Supreme Court available, no reliance can be placed on the Full Bench decision of this Court.
11. After hearing learned counsel for the-parties and going through the records of the ease, I find merit in the contentions raised by learned counsel for respondent-State. However, before I proceed any further with the matter, suffice it to say that no advantage can be had by the defence i.e. the petitioner in this case from the judgment of Supreme Court in Rajnikant Jiwanlal Patel's case (supra) as the same only deals with the power of the Court to cancel the bail even if the same had been granted under proviso (a) to Section 167 of Cr.P.C.
12. All other judgments but for the Full Bench of this Court in Surinder Singh's case and a Single Bench decision of Delhi High Court in, Imam's case (supra), are distinguishable and, as noticed earlier, cannpt be pressed into service by the learned defence counsel for asking bail on the solitary ground that the challan has not been put in within the, stipulated period. Inasmuch as view of the Delhi High Court in Imam's case reflects a' contrary view than the one expressed by the Supreme Court in Narcotic Control Bureau (supra), there is no choice with this Court but to follow the view of the Supreme Court. However, insofar as the judgment of Full Bench of this Court in Surinder Singh's case (supra) is concerned, if the Supreme Court had not dealt with the provisions as were discussed by the Full Bench, this Court in all probability would have referred this matter to a larger bench but while accepting the plea of Narcotic Control Bureau that Section 37 of the NDPS Act limits the powers of the High Court and that the said Section would prevail aver and above the provisions contained in Section 167 of Cr.P.C., in paragraph 7 of the reported judgment i. e. Narcotic Control Bureau's case (supra), the Supreme Court specifically dealt with some of the decisions rendered by it dealing with the analogous provision in other special enactments. Rule 184 of the Defence and Internal Security of Indian Rules, 1971, which, as referred above, is analogous to Section 37 of the N.D.P.S. Act was also discussed. After reproducing Rule 184, the Supreme Court observed as follows:-
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 power of granting bail in certain kinds of cases.
Thereafter, the attention of the Supreme Court was focused on the observations made by it in Bal Chand Jain v. State of Madhya Pradesh, AIR 1977 SC 366 : (1977 Cri LJ 225) and the following portion of the judgment was reproduced at page 229 of Cri. L.J.:-
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 thought offences arising out of contravention of rules and orders made thereunder 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 released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the Contrevention 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).
13. The view of Hon'ble Mr. Justice Fazal Ali in the case aforesaid was also noticed which reads thus:-
That in cases covered by Rule 184 of the Rules, the Court exercising power under Section 436 or Section 438 of the Code has got to comply with the conditions mentioned in clauses (a) and (b) of Rule 184 and only after the Court has complied with those conditions that an order under any of these Sections of the Code in respect of such offences could be passed.
14. Sub-sections (8) and (9) of Section 20 of the TADA Act, which also limit the scope of Sections 437 and 439, then came up for consideration. It may be mentioned here that sub-sections (8) and (9) of Section 20 are once again analogous to Section 37 of the N.D.P.S. Act.
15. The following observations of the Supreme Court in Usmanbhai Dawoodbhai Memon v. State of Gujarat, also came to be noticed :-
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 thereunder, but that result must, by necessary impliction, follow. It is true that the source of power of a Designated Court to grant bail is not 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 limitation 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 Sessions' within the meaning of-Section 437 of the Code. The exercise of the power to grant bail by 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).
16. The controversy with regard to power of the High Court to grant bail under Section 439 of the Code, as noticed in the aforesaid decision, was also discussed and the following paragraph of the judgment was reproduced :-
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 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 palces limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations 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 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.
17. The operative part of the judgment in Narcotics Control Bureau's case (supra) is as under:-
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, AIR 1977 SC 366, and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non obstance clause must be given its due importance. For all the aforesaid reasons we hold that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the N.D.P.S. 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.
18. There being a direct view of the Supreme Court available on the controversy involved in the matter, which decision in turn has taken into consideration the provisions that were under consideration by the Full Bench of this Court in Surinder Singh's case (supra), there is no choice but to follow the decision of the Supreme Court and for that precise reason I have not chosen to refer this matter to a larger bench. Also, the Supreme Court judgment is directly on the point and for that reason also there is no necessity to refer the matter to a larger bench.
19. Before I part with this order, it would be relevant to mention that the N.D.P.S. Act was brought about with a view to consolidate and amend the law relating to Narcotics Drugs and to make stringent provisions for the control and regulation of operations relating to the Narcotic Drugs and Psychotropic Substances and deterrent punishment was provided to those who are engaged in drug paddling. The underlying object of the Act, as has been noticed above, cannot possibly be lost sight of while interpreting the provisions contained in the Act under contention. N.D.P.S. Act, thus being a special-enactment brought about with a view to control and regulate the operations relating to Narcotic Drugs and Pshychotropic Substances, the provisions contained in Section 37 of the Act, which are in negative terms, straight way limit the scope of applicability of the provisions of Cr.P.C. regarding bail. Thus, it cannot be held that the High Court has power to grant bail under Section 439 Cr.P.C. Such powers are, of course, available but the same are subject to limitations prescribed under Section 37 of the N.D.P.S. Act and the mere fact that the challan has not been put in within the statutory period as envisaged under the provisions of Cr.P.C., no right accrues to the accused to ask for bail as a matter of fact.
20. In view of the discussion made above, I find no merit in this application and dismiss the same.