Rajasthan High Court - Jodhpur
Daulat Singh @ Gatu vs State Of Rajasthan on 22 April, 2014
Equivalent citations: 2014 CRI. L. J. 2860, (2014) 140 ALLINDCAS 755 (RAJ), (2015) 2 RAJ LW 1761, (2014) 2 CRILR(RAJ) 738, (2015) 2 CRIMES 695, (2014) 4 WLC (RAJ) 1
Author: Govind Mathur
Bench: Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
ANSWER TO THE REFERENCE
In
DB Criminal Misc. IVth Bail Application No.1111/2013
In
SB Criminal Appeal No.517/2010
Daulat Singh @ Gatu
Versus
State of Rajasthan
Date of Judgment :: 22nd April, 2014
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE ATUL KUMAR JAIN
Mr. M.L.Bishnoi, for the applicants-appellants.
Mr. J.P.S. Choudhary, Public Prosecutor, for the State.
....
BY THE COURT : (PER HON'BLE GOVIND MATHUR,J.)
REPORTABLE Arriving at the conclusion that the law laid down by Hon'ble the Supreme Court in the case of Union of India v. Rattan Mallik alias Habul, reported in (2009)2 SCC 624, is running contrary to its earlier judgment in Mansingh v. Union of India, reported in (2004)13 SCC 42, a Single Bench of this Court has sought guidance from the Larger Bench as to which one principle of law from among the two cases aforesaid should be adhered while examining the application seeking release on bail/suspension of sentence in the matters where the conviction is recorded for the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act of 1985"). 2
The discussions made by learned Single Bench while making reference to the Larger Bench read as under:-
"इस न ल क समक उपर क व द ब नद क र शन म ह पशन उतपनन ह त ह! कक जह $ 2009 AIR SCW 3648 (Union of India Vs. Rattan Malik @ Habul) म ध र 37 "अधधनन म, 1985" क व शष प ध न* क दव,गत रखत हए अन उच1 न ल दर जम नत प र4न -पत क स क र करन क आदश क म नन उच1तम न ल क द म नन न धधपनत क प ठ द र Dadu alias Tulsidas Vs. State of Maharashtra ([2000]8 SCC 437) पर अ लम: त ह त हए ल:
सम स अभ< क क न न क अभ<रक म ह न ननकट
<व ष म अप ल क सन ई क स$< न नह@$ ह न क
आध र क न ध1त आध र नह@$ म नत हए सज सरगन
आदश ननरसत कक ग ह!, उस ननर4 म (2004) 13
SCC 42 (Mansingh Vs. Union of India) क ह ल नह@$ ह न क जBद उस ननर4 क मजस उदरर क आध र पर प ररत कक ग ह! ए $ उस उदरर क व ख क अनस र पश1 त तG ननर4 2009 AIR SCW 3648 (Union of India Vs. Rattan Mallik @ Habul) क आध र पर स: मनधत प रG/अभ< क क जम नत क सव ध पद न कक ज न उध1त नह@$ म न ग ह! , तदपर नत अधध क प रG क ओर स एकल प ठ द मIJक व व ध छठ $ सज सरगन प र4न -पत स$ख 28/2013 (मनफBल भस$ह न म र जसर न र ज ) म प ररत आदश ददन $ककत 07.02.2013 ए $ एकल प ठ द मIJक व व ध सज सरगन प र4न -पत स$ख 28/2011 (श 1$1ल भस$ह ग!. न म कनP@ स पक ब Bर ) म प ररत सज सरगन आदश क र शन म 2009 AIR SCW 3648 (Union 3 of India Vs. Rattan Mallik @ Habul) म पनतप ददत भसद नत* क तहत सज सरगन प र4न -पत स क र कर अभ< क क जम नत क ल < दद ज सकत ह! नह@$, ह एक महत पर B 4 ब नद "स पक औषधध ए $ मन:प< पद र4 अधधनन म, 1985" क धर 37 क र शन म ( णरमज क म त स स: मनधत पकरर* म) ककस उदरर ({2004} 13 SCC 42 2009 AIR SCW 3648) म पनतप ददत भसद नत क आध र पर आदश प ररत कक ज । इस कम म सप, म ग4दश4न क पकरर म आ श कत ह! ।"
Looking to the nature of the issue referred for adjudication, it shall be appropriate to quote the Section 37 of the Act of 1985 :-
"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 offences under section 19 or section 24 of section 27 A and also for offences involving commercial quantity 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 4 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."
As per the provision aforesaid a court considering any application to release an accused of the offences punishable under section 19 or section 24 or section 27 A and also for offences involving commercial quantity of contraband cannot be released on bail without recording the satisfaction as desired under sub-clauses (1) and (2) of clause (b) of Section 37(1) of the Act of 1985.
Hon'ble the Supreme Court in the case of Dadu alias Tulsidas v. State of Maharashtra, reported in (2000)8 SCC 437,in detail examined the objects and scope of Section 37 referred above and held as under:-
"28. This Court in Union of India v. Ram Samujh held that the jurisdiction of the court to grant bail is circumscribed by the aforesaid section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during period of suspension of the sentence. The Court further held : (SCC pp.431- 32, paras 6-8) "6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement 5 of Objects and Reasons for introducing Bill No.125 of 1988 thus :
'Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt.'
7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa as under : (SCC p.104, para 24) '24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the 6 menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.'
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i)there are reasonable grounds for believing that the accused is not guilty of such offence;
and
(ii)that he is not likely to commit any offence while on bail are satisfied."
29. Under the circumstances the writ petitions are disposed of by holding that :
(1).....
(2).....
(3)Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment."
(Emphasis supplied by us.) The same issue was again considered by Hon'ble the Supreme Court in the case of Rattan Mallik (supra), wherein too the Apex Court emphasised that the conditions 7 given under Section 37 of the Act of 1985 are cumulative and mandatory, thus, required to be taken into consideration while dealing with an application for grant of release on bail and the court, if finds it proper to grant such application, is under a statutory obligation to record its satisfaction. The findings arrived by Hon'ble the Supreme Court in the case of Rattan Mallik (supra) read as under:-
"12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i)the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".
13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and 8 circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of "not guilty". At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."
(Emphasis supplied by us.) In between these two authoritative judgments with regard to consideration of the bail applications/ applications for suspension of sentence, Hon'ble the Supreme Court in the case of Mansingh (supra) passed an order that reads as under:-
"1. Leave granted.
2. The appellant has been held guilty of the offence punishable under Sections 8/18 and 8/15 9 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and and directed to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lakh on each count.
3. The appellant has been in jail since 1-3-1997 and has already undergone more than seven years of imprisonment. It is stated by the learned counsel for the appellant that there is no likelihood of the appeal being heard in the near future. Reliance is placed on the decision of this Court in Dadu v. State of Maharashtra. The learned counsel for the appellant states that the appellant is prepared to deposit the amount of fine.
4. The appeal is allowed. It is directed that on the appellant depositing the amount of fine, the execution of the sentence of imprisonment shall remain suspended during the hearing of the appeal by the High Court and the appellant shall be released on bail to the satisfaction of the trial court for appearance consistently with the judgment of the High Court."
In the case of Mansingh (supra) Hon'ble the Supreme Court granted an application seeking suspension of sentence during pendency of an appeal before the High Court by taking into consideration the substantial period of imprisonment already undergone and further the circumstance of no likelihood of expeditious hearing of the appeal.
Learned Single Bench of this Court while referring the issue for consideration to the Larger Bench noticed that while laying down the law in the case of Rattan Mallik (supra) for considering bail applications/ 10 applications seeking suspension of sentence, has not taken into consideration the order passed in the case of Mansingh (supra) and that demands necessary guidance as to which one precedent is to be followed.
As already stated the effect, implication and need of the operation of Section 37 of the Act of 1985 was considered in detail by Hon'ble the Supreme Court in the case of Dadu alias Tulsidas v. State of Maharashtra (supra) and the same was reiterated in the case of Rattan Mallik (supra). So far as the order passed in the case of Mansingh (supra) is concerned, that is not containing reasons as desired under Section 37 aforesaid. As a matter of fact, the court in this case did not examine the requirements of Section 37 as the order was passed for doing complete justice as the accused was behind the bars for a period of more than seven years and there was no chance of expeditious hearing of the appeal. Such an order was passed by Hon'ble the Supreme Court in exercise of its extraordinary powers available under Article 142(1) of the Constitution of India. The Apex Court as per the provision aforesaid is having an authority to make such order,if necessary for doing complete justice in any cause or matter pending before it. The scope of Article 142(1) of the Constitution of India was examined by Hon'ble the Supreme Court in the case of Mohammed Anis v. Union of India & Ors., reported in 1994 Supp (1) SCC 145. The discussions made in this regard read as under:-
"Apex Court has been conferred extraordinary powers by Article 142(1) of the Constitution so that it can do complete justice in any cause or 11 matter pending before it. The question regarding the width and amplitude of this Court's power under Article 142(1) came up for consideration before this Court in Delhi Judicial Service Assn., Delhi v. State of Gujarat and again before the Constitution Bench in Union Carbide Corpn. v. Union of India. In the first case this Court observed that the power conferred by Article 142 (1) coupled with the plenary powers under Articles 32 and 136 empowers the Court to pass such orders as it deems necessary to do complete justice to the cause or matter brought before it.
This power to do complete justice is entirely of different level and of a different quality which cannot be limited or restricted by provisions contained in statutory law. No enactment made by the Central or State Legislature can limit or restrict the Court's powers under Article 142(1) though while exercising it the Court may have regard to statutory provisions (See paragraphs 50 and 51 of the judgment). In the second case this Court clarified that the expression "cause or matter" must be construed in a wide sense to effectuate the purpose of conferment of power. This power has been conferred on the Apex Court only and the exercise of that power is not dependent or conditioned by any statutory provision. The constitutional plenitude of the powers of the Apex Court is to ensure due and proper administration of justice and is intended to be co-extensive in each case with the needs of justice of a given case and to meeting any exigency. Very wide powers have been conferred on this Court for due and proper administration of justice and whenever the Court sees that the demand of justice warrants exercise of such powers, it will reach out to ensure that justice is done by resorting to this extraordinary power conferred to meet precisely such a situation. True it is, that the power must be exercised sparingly for furthering the ends of justice but it cannot be said that its exercise is 12 conditioned by any statutory provision. Any such view would defeat the very purpose and object of conferment of this extraordinary power. In the Union Carbide case this Court observed as under:
(SCC p.634, para 83) "It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution.... The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the Apex Court under Article 142(1) is unsound and erroneous."
Proceeding further, the Court observed : (SCC p.635, para 83) "The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations on provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142."
That is so for the obvious reason that statutory provisions cannot override constitutional provisions and Article 142(1) being a constitutional power cannot be limited or conditioned by any statutory provision."
The authority of Hon'ble the Supreme Court under Article 142 of the Constitution of India is an extraordinary authority and that is not abide by the statutory provisions. The power available can very well be exercised beyond statutory limits if that is required for dispensing complete justice in any case. It shall be pertinent to notice here that as per Article 141 of the 13 Constitution of India the law declared by the Supreme Court shall be binding on all courts within the territory of India, as such, the binding effect in the form of precedent is available to the judgments declaring law by the Apex Court. Article 142 of the Constitution of India nowhere refers judgments but decree or order. The decrees or orders passed by the Apex Court while exercising its extraordinary authority under Article 142 of the Constitution of India cannot be taken as precedent. It shall also be appropriate to mention that the Constitution of India nowhere prescribes any authority to High Courts akin to the powers available to Hon'ble the Supreme Court as per Article 142 (1) of the Constitution of India. This Court, thus, is required to operate within the four corners of the statutes applicable. The resultant is that Hon'ble Supreme Court may grant release on bail or suspension of sentence without getting itself satisfied with the requirements of Section 37 of the Act of 1985, if that is necessary for doing complete justice, such an authority, however, is not available to the High Court or the trial court, as the case may be. As already stated, the order passed in the case of Mansingh (supra) is a reflection of the authority exercised under Article 142 of the Constitution of India, thus, is not having a binding effect or in other words, an authority of precedent for the High Court or the other courts subordinate. The judgments given in the case of Dadu alias Tulsidas v. State of Maharashtra (supra) and Rattan Mallik (supra) are laying down law, hence, are having binding effect and those are required to be adhered in their true spirit.14
Looking to the discussions made above, our conclusion is that the applications preferred by an accused of the offences punishable under Sections 19, 24 and 27 A under the Act of 1985 and also for the offences involving commercial quantity of contraband for his release on bail or for suspension of sentence are required to be considered by the High Courts or the trial courts, as the case may be, by taking into consideration the provisions of Section 37 of the Act of 1985 . The law discussed and settled in the case of Dadu alias Tulsidas v. State of Maharashtra (supra) and Rattan Mallik (supra), thus, is to be followed by the courts while dealing with the applications submitted by the accused of the offences referred in Section 37 of the Act of 1985 for grant of bail or for suspension of sentence.
The reference is answered accordingly. (ATUL KUMAR JAIN),J. (GOVIND MATHUR),J. Mathuria.KK/PS.