Andhra HC (Pre-Telangana)
Kanneboina Ramesh And Anr. vs The State Of A.P. Through Sho ... on 16 May, 2007
ORDER P.S. Narayana, J.
1. Heard Sri Palle Nageswara Rao, learned Counsel representing the petitioners and the learned Additional Public Prosecutor, Sri Prahlada Reddy. Petitioners-Accused Nos. 1 and 3 in Crime No. 15 of 2007 had moved the present bail application under Sections 437 and 439 of Criminal Procedure Code (hereinafter referred to in short as "Code" for the purpose of convenience) praying for the relief that the petitioners be enlarged on bail in connection with the aforesaid Crime No. 15 of 2007 on the file of Advimutharam P.S., Karimnagar District.
2. The case of the prosecution is that on 17.2.2007, on credible information, the Sub-Inspector of Police along with his men went to Lambadipalli near Narapu Chettu, Hamlet of Korlakunta Village and conducted vehicle checking and at about 12.25 hours, they found silver colour Maruti Car bearing Registration No. AP-5-C-2232, under suspicious circumstances. On searching in the car, four persons were found including the driver and another female. The police basing on the cover of panchanama registered a case in Crime No. 15 of 2007 under Section 8(c) read with Section 20(b) of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act" for the purpose of convenience). It is stated in the application that the petitioners are innocent persons and had not committed any offence and they had been falsely implicated. It is also stated that for no fault of them, they have been languishing in District Jail, Karimnagar from 8.2.2007 and the police have already completed their investigation and only charge sheet has to be filed. It is also stated that the petitioner moved Criminal M.P. No. 104 of 2007 before the Court of the I Additional Sessions Judge, Karimnagar praying for grant of bail and the learned Judge was pleased to dismiss the said application on 13.3.2007.
3. It is not a serious controversy that the allegation as against the 1st petitioner-Accused No. 1 is that the police seized 40 kgs. of ganja and the further allegation is that 15 kgs., each had been seized from A3 to A6. The learned I Additional Sessions Judge at Karimnagar recorded certain reasons, relied upon Section 37 of the Act and came to the conclusion that in the facts and circumstances, the petitioners-Accused Nos. 1 and 3 cannot be granted bail and accordingly dismissed the said application.
4. Sri Palle Nageswara Rao, the learned Counsel representing the petitioners would submit that Section 37 of the Act is not applicable and the learned Judge totally erred in dismissing the said application and inasmuch as the investigation is over, the petitioners be enlarged on bail.
5. Per contra, Sri Prahlada Reddy, learned Additional Public Prosecutor would submit that by virtue of the Central Government notification, commercial quantity within the meaning of Section 37 of the Act would mean 20 kgs., and exceeding thereof, and in the light of the allegations made as far as petitioner-Accused No. 1 is concerned, Section 37 of the Act would be attracted.
6. Heard both the counsel and perused the material available on record.
7. The Act, Act 61 of 1985 is 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 drugs and psychotropic 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 the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.
8. Section 37 of the Act deals with offences to be cognizable and non-bailable and the said provision reads as hereunder:
1) Notwithstanding anything contained in this sub-section shall affect the power of the High Court under Section 407 of the Code of Criminal Procedure, 1973
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of offences (punishable under Section 19 or Section 24 or 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 are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail.
9. It is needless to say that Section 37(1)(b) specifies that notwithstanding anything contained in the Code of Criminal Procedure, no person accused of offences punishable under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity, shall be released on bail or on his own bond unless; Sub-section (ii) specifies that 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.
10. The words "punishable" under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity had been substituted by Amending Act 9 of 2001.
11. In Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar and Ors. , the Apex Court observed thus:
5. The scheme of Section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439 of the Cr. P.C. but is also subject to the limitation placed by Section 37 which commences with non obstante clause. The operative part of the said section is in negative in prescribing the enlargement of bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that prosecution must be given an opportunity to oppose the application and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. As per the mandate of Section 37 no person accused of an offence punishable for a term of imprisonment of 5 years or more under the Act can be released on bail unless the conditions mentioned in Sub-clauses (i) and (ii) of Clause (b) are satisfied. Pre-condition for application of Clause (b) would be that offence is punishable for a term of imprisonment of 5 years or more. Plain reading of the above said clause makes it clear that in case where the person is accused of an offence punishable for a terms of imprisonment of 5 years then he cannot be released unless the conditions mentioned therein are satisfied. In case of offence punishable under Section 20(b)(i) maximum punishment is for a term of imprisonment of 5 years and a fine which may extend to Rs. 50,000/-. There is no justifiable reason to hold that maximum term of imprisonment is to be excluded for the purpose of interpretation and Section 37 would not cover in its fold offence punishable under Section 20(b)(i).
6. Further, even if we consider the legislative intent in context of other provisions which provide for punishment it would be clear that Section 37 would cover in its fold the offence punishable under Section 20(b)(i). Provisions empowering the Court to impose punishment can be divided into four parts, namely, (i) less than five years, (ii) up to five years (iii) more than five years and (iv) providing death penalty. Sections 26, 27 and 32 provide for imprisonment for a term which may be less than five years. Section 25(a) provides that the imprisonment may extend up to ten years. Other sections, namely, Sections 15, 16, 17, 18, 19, 20(b)(ii), 21, 22, 23, 24 and 25 provide that punishment shall not be 'for a term less than ten years'. Except Section 20(b)(i) there is no provision which prescribes that imprisonment may extend to five years. For the offence punishable under said section, in appropriate cases, Court may impose maximum punishment of five years. Therefore, there is no reason to exclude the said clause from the operation of Section 37.
12. In Babua Alias Tazmul Hossain v. State of Orissa and Ors. , the Apex Court observed thus:
3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society.
Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view.
4. However, attempts should be made by the State Governments of Orissa and West Bengal to see that the trial in the cases pending before them are facilitated by making appropriate arrangement to have all the accused persons in one place for purposes of trial and details should be worked out and shall be examined by the High Court of Orissa and the High Court of Calcutta on the administrative side and appropriate directions be given in that regard to enable expeditious disposal of the case. In this case, it is, therefore, not proper for us to enter upon the merits of the case so far as the splitting of the charges are concerned or refusal of the IIIrd Additional District Judge, Howrah in not releasing the main accused to enable the trial to go on at Balasore. Copies of this order shall be sent to the Chief Secretary to the Government of West Bengal, Chief Secretary to the Government of Orissa, Registrar of the High Court of Calcutta and Registrar of the High Court of Orissa for compliance with directions.
In Union of India v. Ram Samujh and Ors. 1999 (2) ALD (Crl.) 508 (SC), it was held thus:
5. The jurisdiction of the Court to grant bail is circumscribed by the provision of Section 37 of NDPS Act. It can be granted in case where there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is the mandate of the Legislature which is required to be followed. At this juncture a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus:
37. Offences to be cognizable and non-bailable :- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973:
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of five years or more under this Act shall be released on bail or on his own bond unless:
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting bail.
The aforesaid Section is incorporated to achieve the object as mentioned in the Statement of Object and Reasons for introducing the Bill No. 125/1988 thus:
Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985, the need to amend the law to further strengthen it, has been felt.
6. It is also be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and 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 NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secretary v. Union of India as under:
With deep concern, we may point out that the organized 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 menace has assumed serious and alarming proportion 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, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
7. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offence s under the NDPS Act should not be released on bail during trial unless 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. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended.
13. It is needless to state that the power of the High Court to grant bail under Section 439 of the Code is subject to limitation under Section 37 of the Act.
14. In Deshvat Jagram v. State Of Andhra Pradesh and Ors. 1997 (1) ALD (Crl.) 327 (AP), a learned judge of this Court observed as hereunder:
2. The learned Counsel for the petitioner contends that Section 37 of the N.D.P.S. Act does not in any way restrict the power of the High Court and the Sessions Court under Section 439 of the Criminal Procedure, 1973. But, this contention has no legs to stand because the question is no longer res integra and is concluded by the decisions of the Supreme Court in Narcotic Control Bureau v. Kishan Lal and Union of India v. Thamisharasi . In Kishan Lal's case supra, the Supreme Court has considered the scope and ambit of Section 37 of the N.D.P.S Act, and has observed that it 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" and that "consequently the power to grant bail under any of the provisions of the Cr.P.C. would necessarily be subject to the conditions mentioned in Section 37 of the N.D.P.S. Act." After reviewing the earlier decisions of the Supreme Court, it was observed as follows:
From the above discussion it emerges that in Usmanbhai Dawoodbhai Memon v. State of Gujarat , the Supreme Court did not express anything contrary to what has been observed in Balchand Jain v. State of M.P. and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non-obstante 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.
15. This position is reiterated by the Supreme Court in Thamisharasi's case AIR 2001 Supreme Court 1052 further elucidating the position as follows:
Under Section 437 Cr.P.C., it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail; but under Section 37 N.D.P.S. Act it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This appears to be the distinction between the two provisions which makes Section 37 of the N.D.P.S. Act more stringent.
Accordingly, provision in Section 37 to the extent it is inconsistent with Section 437 of the Code of Criminal Procedure supersedes the corresponding provision in the Code and imposes limitations of granting of bail in addition to the limitations under the Code of Criminal Procedure as expressly provided in Sub-section (2) of Section 37. These limitations on granting of bail specified in Sub-section (1) of Section 37 are in addition to the limitations under Section 437 of the Code of Criminal Procedure and were enacted only for this purpose; and they do not have the effect of excluding the applicability of the proviso to Sub-section (2) of Section 167 of Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation.
16. In Md. Alimuddin v. State of Manipur and Ors. 2001 Crl. Law Journal 1140, it was observed thus:
8. In Braj Kishore Thakur's case Braj Kishore Thakur v. Union of India-Supra the Apex Court in dealing with a case of castigation of the learned Special Judge by the learned Single Judge of Patna High Court, accepted the decision of a Division Bench of Patna High Court in Kamalesh Kumar v. State of Bihar reported in (1994) 2 Pat LJR 600 in which it was held that "when an accused is charged with offence under Section 20(b)(i) of the NDPS Act, the power under Section 37(i)(b) of the said Act is not to be attracted". The rationale of the said case is applicable in the present case.
17. The aspect of commercial quantity in the context of Central Government Notification and also in the light of the amended provisions of Section 37 of the Act had been considered in Sukhraj Singh v. State of Punjab and Ors. 2002 (2) EFR 419 and 420 (Punjab & Haryana). It is needless to state that Section 27-A of the Act deals with serious offences as held in Ramgopal v. State of Haryana and Ors. 2004 Criminal Law Journal 736. The decisions referred to supra no doubt are prior to the Amending Act.
18. It may also be appropriate to have a look at the relevant provisions of the Act in this context. Section 19 of the Act deals with punishment for embezzlement of opium by cultivator and the said provision reads as hereunder.
19. Any cultivator licensed to cultivate the opium poppy on account of the Central Government who embezzles or otherwise illegally disposes of the opium produced or any part thereof, shall be punishable 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 than one lakh rupees but 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.
19. Section 24 of the Act deals with punishment for external dealings in narcotic drugs and psychotropic substances in contravention of Section 12 and the said provision reads as hereunder:
24. Whoever engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorization of the Central Government or otherwise than in accordance with the conditions (if any) of such authorization granted under Section 12, shall be punishable 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 than one lakh rupees but 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.
20. It may also be relevant to have a look at Section 12 of the Act and Section 12 of the Act deals with restrictions over external dealings in narcotic drugs and psychotropic substances and the said provision reads as hereunder:
12. No person shall engage in or control any trade whereby a narcotic drug or psychotropic substance is obtained outside India and supplied to any person outside India save with the previous authorization of the Central Government and subject to such conditions as may be imposed by the Government in this behalf.
Likewise, Section 27-A of the Act deals with punishment for financing illicit traffic and harbouring offenders and the said provision reads as hereunder:
27-A Whoever indulges in financing, directly or indirectly, any of the activities specified in Sub-clauses (i) to (v) of Clause (viiia) of Section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable 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 than one lakh rupees but 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.
21. It is not in controversy that the said provisions are not applicable to the facts on hand and the learned Additional Public Prosecutor placed strong reliance on the language employed in Section 37(b) "and also for offences involving commercial quantity".
22. In the light of the material available on record and inasmuch as specific allegation had been made as against the first petitioner-Accused No. 1 that 40 kgs. of ganja had been seized from him, unless the additional conditions specified under Section 37 of the Act are satisfied apart from the provisions for grant of bail under the provisions of the Code, the case of the first petitioner-Accused No. 1 cannot be considered.
23. In the light of the same, liberty is given to the first petitioner-Accused No. 1 to move appropriate bail application specifying the additional reasons, if any.
24. As far as the second petitioner-Accused No. 3 is concerned, since the allegation is that 15 kgs. of ganja had been seized from the second petitioner-Accused No. 3, inasmuch as Section 37 of the Act as it is being not applicable, in the light of the facts and circumstances, the second petitioner-Accused No. 3 be released on bail on condition of the second petitioner-Accused No. 3 furnishing two sureties for a sum of Rs. 15,000/- each and also personal bond for the likesum to the satisfaction of the Judicial First Class Magistrate, Manthani.
25. Accordingly, the bail application as against 1st petitioner-Accused No. 1 is dismissed, no doubt, giving liberty to him to move appropriate application; and the second petitioner-A3 is hereby enlarged on bail subject to the conditions specified supra.