Andhra HC (Pre-Telangana)
Dashwath Jagram vs The State Of Andhra Pradesh on 11 February, 1997
Equivalent citations: 1997CRILJ3112
ORDER
1. The petitioner in this petition seeks bail. The allegation is that 18 ganja plants were found in 20 cents of his chilly garden and that the police filed the First Information Report under Section 8(c) and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act"). The petitioner was arrested and was sent to judicial custody on 3-1-1997, by the learned Judicial First Class Magistrate at Achampet and he is now in judicial custody. In the remand report it is stated that the petitioner/accused was in possession of the ganja plants.
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 Code, 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 Narcotics Control Bureau v. Kishan lal, and Union of India v. Thamisharasi, . In Kishan Lal's case, , 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 Cr.P.C. should 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 : (at p. 660 of Cri LJ) "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 aid 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."
3. This position is reiterated by the Supreme Court in Thamisharasi's case, , further elucidating the position as follows (at pp. 2549 and 2550 of AIR SCW) "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 are 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 Cr.P.C. which operates in a different field relating to the total period of custody of the accused permissible during investigation".
4. In the present case, after going through the provisions of Section 8 and Section 29 of the N.D.P.S. Act and noticing the allegations against the petitioner and after hearing the learned counsel for the petitioner, in view of the Public Prosecutor opposing the grant of bail to the petitioner, I find that the petitioner has not satisfied me as required under sub-clause (ii) of clause (b) of sub-section (1) of Section 37 for his release on bail. As the matter is still under investigation by the police. I do not wish to further dilate on the merits. In that view of the matter, the petition is dismissed.
5. However, it will be open to the petitioner to approach the learned Sessions Judge after statutory period of 60 days under Section 167 of the Criminal Procedure Code is completed, or after charge-sheet, if any, is filed whichever is earlier.
6. Petition dismissed.