Jharkhand High Court
Aryan Kumar vs The State Of Jharkhand And Anr on 6 November, 2017
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 7540 of 2017
Aryan Kumar ... ... Petitioner
versus
1. The State of Jharkhand
2. Union of India, Narcotics Control Bureau
... ... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Petitioner : Mr. D.K. Karmakar, Advocate
For the State : Addl. P.P.
For the UOI, N.C.B. : Spl. P.P.
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Order No. 04 : Dated: 6th November, 2017
The petitioner has been made accused in connection with Special Case No. 03 of 2017 registered under Sections 8(c), 20(b)(ii)(B) of the N.D.P.S. Act, 1985.
Heard the parties.
Learned counsel for the petitioner submits that the allegation against the petitioner is that 15.550 Kgs. of Ganja has been recovered from the possession of the petitioner. It is, further, submitted that conditions laid down in section 50 of the N.D.P.S. Act was not complied with at the time of search of the petitioner, therefore, the petitioner may be released on bail.
The learned Special P.P. opposes the prayer for bail and relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Intelligence Officer, Narcotics C. Bureau Vs. Sambhu Sonkar and Another reported in (2001) 2 SCC 562 in which case 18.7 Kgs. of Ganja with Rs. 4370/- was recovered from the accused, Hon'ble Supreme Court held that:
"......... it would be difficult to accept the contention of the learned counsel for the respondents that the liberal interpretation given by the High Court to Section 37 is justified as it affects personal liberty of a citizen who is yet to be tried. In our view, considering the legislative intent of curbing the practice of giving bail on technical ground in a crime which adversely affects the entire society including lives of number of persons and the object of making stringent provisions for control of illicit traffic in narcotic drugs and psychotropic substances, there is no reasons to accept the construction of the section which its language can hardly bear."
In that case the Hon'ble Supreme Court went on to set aside the order passed by High Court granting bail to the accused. Further the Hon'ble Apex Court held that Section 37 would cover in its fold the offence punishable under Section 20(b)(i).
It is pertinent to mention here that the Hon'ble Supreme Court held so when section 37 of NDPS Act was as under;
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;
38. (b) no person accused of an offence punishable for a terms 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 grnating 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."
But Section 37 of the NDPS Act has since been amended by section 17 of Act 9 of 2001 by substituting the words "a term of imprisonment of five years or more under this Act" with the words "offences under section 19 or section 24 of section 27 A and also for offences involving commercial quantity" w.e.f. 2-10-2001.
Hence now section 37 of the NDPS Act reads as under:
"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 or section 27A and also for offences invlolving 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 (2 of 1974) or any other law for the time being in force, on granting of bail. "
Thus in view of the change in law the ratio of Sambhu Sonkar (Supra) is not directly applicable in this case.
To Counter the contention of the learned counsel for the petitioner that the conditions laid down in section 50 of the N.D.P.S. Act was not complied with at the time of search of the petitioner; Learned Special P.P. appearing for the Narcotics Control Board, also relied upon the judgment of Supdt. Narcotics Central Bureau, Chennai v. R. Paulsamy reported in 2001 CRI. L.J. 117 rendered by the Hon'ble Supreme Court wherein it has been held that : Compliance of Ss. 52 and 57 is matter which could be established only at the trial and could not be prejudged at the stage of consideration for bail. It is also submitted by the learned Special P.P. appearing for the Narcotics Control Bureau that in his statement recorded under section 67 of the NDPS Act the petitioner has admitted his complicity in the offence and a prayer has been made by the Narcotics Control Bureau for custodial interrogation of the petitioner in the jail premises for verification of the photographs and addresses of the co-accused persons. Hence, it is submitted by the learned Special P.P. appearing for the Narcotics Control Bureau the petitioner ought not to be admitted to bail.
Considering the submissions of the counsels and the aforesaid facts and circumstances of the case, I am not inclined to release the petitioner on bail.
Accordingly, prayer for bail of the petitioner stands dismissed.
(Anil Kumar Choudhary, J.) MM