Madhya Pradesh High Court
Ravi Jain vs Central Bureau Of Narcotics on 16 August, 2017
1
MCRC 7530/2017
Ravi Jain vs. Central Bureau of Narcotics AFR
16/08/2017
Shri Sankalp Sharma, counsel for the applicant.
Shri Vivek Khedkar, Assistant Solicitor General for
Union of India- respondent/ Central Bureau of Narcotics.
This is first application under Section 438 of CrPC for grant of anticipatory bail.
The applicant apprehends his arrest in connection with Crime No.01/2017 registered at Police Station Narcotics, Morar, District Gwalior for the offence punishable under Sections 8/22 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 [in short '' the Act, 1985''].
A preliminary objection has been raised by the Assistant Solicitor General for the respondent with regard to the maintainability of this application for grant of anticipatory bail, on the ground that the complaint has been filed and the applicant is absconding, therefore, the Court below has issued warrant of arrest and thus, the application for grant of anticipatory bail is not maintainable. Further, it is submitted by the Assistant Solicitor General for the respondent that in view of Section 36-A(3) of the Act,1985, the application for grant of anticipatory bail is not maintainable. To buttress his contention, the Assistant Solicitor General for the respondent has relied upon the judgment passed in the case of Rakesh Kumar alias Kukka Vs. State of M.P. [Cr.(M) No.108 of 2003] decided on 28-2-2003 by Himachal Pradesh High Court.
Replying to the preliminary objections raised by the counsel for the applicant, it is submitted that the 2 applicant had filed the present application for grant of anticipatory bail on 10-7-2017 and during the pendency of this application, the respondent has filed the complaint on 12-7-2017, therefore, it cannot be said that the applicant was absconding on the date of filing of the application for grant of anticipatory bail before this Court. So far as the second preliminary objection with regard to maintainability of the present application in the light of the provisions of Section 36A(3) of the Act, 1985, is concerned, it is submitted by the counsel for the applicant that there is no provision under the Act, 1985 which bars the jurisdiction of the High Court to entertain the application for grant of anticipatory bail. It is further submitted that Section 37 of the Act, 1985, specifically confers the jurisdiction on the Special Court to grant anticipatory bail, therefore, any interpretation ousting the jurisdiction of the High Court to entertain the application under Section 438 of Cr.P.C. for any offence under the Act,1985 would be against the spirit of Section 37 of the Act, 1985.
Heard on the question of maintainability of application for grant of anticipatory bail.
The first preliminary objection with regard to the maintainability of the application for grant of anticipatory bail is that the complaint has been filed and since, the applicant is absconding, therefore, the arrest warrant has been issued by the Court, therefore, in the light of the order passed by this Court in the case of Sobran Batham vs. State of MP passed in MCRC No.4357/2017 the application for anticipatory bail is not maintainable.
From the record, it appears that the application for grant of anticipatory bail was rejected by the Special 3 Judge by order dated 29-6-2017 and the present application was filed before this Court on 10-7-2017. According to the Assistant Solicitor General for the respondent, the complaint has been filed on 12-7-2017. Since, the application for grant of anticipatory bail was filed during the pendency of the investigation and the application was maintainable, as no warrant of arrest was issued against the applicant by that time, and the applicant had reasonable apprehension of his arrest. Thus, in the considered opinion of this Court, the application for grant of anticipatory bail cannot be thrown overboard only on the ground that during the pendency of the application, the investigating agency has filed the complaint and the concerning Court has issued arrest warrant as the accused is absconding. Accordingly, the first preliminary objection with regard to maintainability of this application on the ground that during the pendency of the application, the complaint has been filed, is hereby rejected.
It is next contended by the Assistant Solicitor General for the respondent that in view of Section 36- A(3) of the Act, 1985, the application for grant of anticipatory bail is not maintainable.
Section 36-A of the Act, 1985 reads as under :
36-A. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973--
(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in 4 this behalf by the Government;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the Special Court where such Magistrate considers--
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorised by him;
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;
(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorized in his behalf, take cognizance of that offence without the accused being committed to it for trial.
(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal 5 Procedure, 1973, be charged at the same trial.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the power under clause (b) of sub- section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36.
(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days":
Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.
The Assistant Solicitor General for the respondent has relied upon the judgment passed by Himachal Pradesh High Court in the case of Rakesh Kumar @ Kukka (supra). The Himachal Pradesh High Court has held that in view of Section 36-A(3) of the Act, 1985, the application under Section 438 of Cr.P.C. is not maintainable before the High Court.
6In the case of Baljit Singh Vs. State of Assam and others passed in BA No.246 of 2003, the Single Bench of the Gauhati High Court by order dated 9-5- 2003, held that the application for grant of anticipatory bail is maintainable. The said judgment was referred to the Division Bench. The Division Bench by order dated 23-6-2003 in the case of Baljit Singh (supra) passed in B.A. No.246 and 464 of 2003 has held as under :
"16. Before weighing the arguments noticed herein-above, we consider it profitable to refer to the other authorities cited at the Bar. In Karamchand (supra) one of the contentions raised before the High Court of Madhya Pradesh was whether Section 12AA of the Essential Commodities Act, 1955 excluded the operation of Section 438 of the Code more particularly in view of the Clauses (b),
(c) and (d) of Sub-section (1). While Clauses
(b) and (c) are with reference to Section 167 of the Code, Clause (d) thereof conferred jurisdiction upon the Special Court or the High Court to release a person on bail when he was accused of or suspected of commission of an offence under the said Act.
Sub-section (4) of Section 12AA which is in pari materia with Section 36A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985, saved the special power of the High Court regarding bail under Section 439 of the Code, In that background it was held that the Special Court or the High Court in exercise of powers under Section 438 of the Code could release a person accused of or suspected of commission of an offence under the said Act in the event of his arrest.
17. The same view was expressed by the Rajasthan High Court in Suresh Chand (supra). The relevant excerpt thereof is set out hereineblow :
"There is no bar or prohibition under Section 12AA that Section 438 CrPC will not apply to cases under the Essential Commodities Act. The 7 Legislature while enacting Section 12AA was fully aware of the existence of Section 438 CrPC Cr.P.C. and if they intend that the Special Court or the High Court should not exercise power under Section 438 Cr.P.C. in cases under the Essential Commodities Act, nothing prevented them to make a mention in Section 12AA and the very fact that the Legislature has omitted to specifically debar the jurisdiction of the Special Court or the High Court under Section 438 Cr.P.C. shows that the Legislature never intended to do so.
Moreover, reading of Section 12AC makes it quite clear that the provisions of Cr.P.C. (including the provisions as to bail and bonds) shall apply to proceedings before the Special Court. Section 438 Cr.P.C. is also a provision of Cr.P.C. and is applicable to proceedings before a Special Court. Thus, in our view the answer to the question referred to us is in the affirmative that is, the High Court has power to grant anticipatory bail to a person accused under Essential Commodities Act, but the High Court should exercise its discretion fairly and properly keeping in view the ambit and scope of Section 438 Cr.P.C. as explained in the judicial pronouncements."
18. The same question again came up for consideration before the Andhra Pradesh High Court in B Kuppa Naidu (supra) wherein the same view was reiterated observing as follows :
"It is quite apparent from Section 12AA that it does not postulate anticipatory bail at all to be granted and, therefore, the exclusion of the powers conferred under Section 438 Cr.P.C. by the special provision under the Essential Commodities Act, does not arise. Section 12AAprovides for release of persons 8 after being apprehended of arrest. An analogous provision is enacted under Section 437 of the Cr.P.C, Therefore, it is quite manifest that the principle of Generalia specialibus non- derogant has no application in this case, inasmuch as, there is no express provision under the Essential Commodities Act to grant anticipatory bail. If that be so, Section 438 will have to be attracted even to those involved in the offence under the Essential Commodities Act which is a special enactment, as not even by implication, the right conferred under Section 438 Cr.P.C. cannot be said to have been taken away by virtue of the provisions under Section 12AA of the Essential Commodities Act. Each has occupied an independent and different field."
19. In Sri Balchand Jain (supra) the Apex Court was seized with the question as to whether an order of anticipatory bail can be made by a Court of Sessions or the High Court under Section 438 of the Code in case of offence falling under Section 184 of Defence of Internal Security of India Rules, 1971 made under the Defence of Internal Security of India Act, 1971. After examining the historical background of Section 438 of the Code and the language in which it is couched vis-a-vis the contients of Rule 184 of the aforementioned Rules the Apex Court answered it in the affirmative. Noticing that the said Rules mandated that no person accused of or suspected of contravention of the provisions of the said rules or order made thereunder if in custody can be released on bail except on the fulfilment of the conditions set out therein, it held that Rule 184 could not be said to lay down a self-contained Code for grant of bail so that a power to grant bail must be found only in the said Rule and not in the Code. It ruled that Rule 184 deals with a situation at a stage when a person is accused or of suspected of any contravention of any Rule or order made under the said 9 Rules is in custody and, therefore, if a person not in custody applies for grant of anticipatory bail being under an apprehension of arrest his case would be clearly out side the mischief of Rule 184. It, therefore, concluded that Section 438 of the Code and Rule 184 operate at different stages and there was no overlapping between the two provisions so as to give rise to a conflict between them and thus Rule 184 did not stand in the way of a Court of Sessions or a High Court in granting anticipatory bail under Section 438 of the Code to a person apprehending arrest in contravention of any provision made under the Rules.
22. A survey of the judicial precedents as above, clearly highlights the proposition that in absence of any specific provisions to the contrary in any enactment containing the provision for bail, the exclusion of the power of the High Court to grant anticipatory/pre- arrest bail under Section 438 of the Code cannot be readily inferred.
29. On a reading of the provisions of the Act under Chapter IV thereof, it is evidently clear that the Legislature has formulated a scheme providing for the forum and the punishments for the offences referred to therein as well as for dealing with the persons accused of or suspected of commission of offence, at the investigation stage. Provisions have also been made with regard to bail as well as for appeal and revision before the High Court. The Code has also been made applicable to the proceeding before the Special Court save as otherwise provided by the Act. It is significant that no where in the said Chapter or in the Act there is a provision excluding the power of the High Court to grant pre-arrest bail under Section 438 of the Code.
30. A bare reading of Section 36A suggests that the same relate to a post-arrest situation where a person accused of or suspected of an offence under the Act is forwarded to a Magistrate. The said section which stands 10 with a non-obstante clause by Clauses (b) and (c) of Sub-section (1) limits the power of releasing such a person only to the Special Court. It is, therefore, in our view, to obviate a possible misconception that the special power of the High Court regarding bail under Section 439 of the Code is excluded by the precepts contained in Section 36A, that the Legislature in its wisdom incorporated the Sub-section (3) thereof. As Section 36A apparently deals with the post-arrest situations it was thus not felt necessary to refer to Section 438 of the Code pertaining to the power of the High Court to grant pre- arrest bail, in the said subsection. In our considered view, the setting in which Section 36A(3)appears, it is the only plausible interpretation.
31. As alluded above, the provision of the Code including those as to bail and bonds have been save as otherwise provided in the Act made applicable to the proceeding before the Special Court which is deemed to be a Court of Sessions. There is no provision of the Act which excludes the applicability of the Code to the proceeding before the Special Court. Thus, in terms of Section 36C, a Special Court on which the power of Court of Sessions has been conferred, has the jurisdiction to grant pre-arrest bail under Section 438 of the Code. In view of the fact that the High Court has been conferred the power under Chapter XXIX and XXX of the Code relating to appeal, reference and revision, it would be wholly incompatible with the idea that it has been denuded of its power under Section 438 of the Code, more particularly in absence of any specific provision to the contrary. It is incomprehensible that a Special Court which is deemed to be Court of Sessions can exercise the power to grant anticipatory bail whereas the High Court though conferred with the jurisdiction of entertaining the appeals, references and revisions under the Code would be denied the same. It would, therefore, be in conformity with the 11 legislative intent expressed in Section 36B to construe that in the scheme of the Act as envisaged under Chapter IV thereof, the power of the High Court to grant pre-arrest bail under Section 438 of the Code is preserved. Further, the power of granting anticipatory bail, tracing the history of incorporation of the related provision of the Code, is extraordinary in character and has been conferred on the Courts of higher echelons namely the Court of Sessions and the High Court. It is the power exercisable in cases of anticipated accusation of non- bailable offences and no limit as to the category of the non-bailable offences in respect of which the power can be exercised has as such been prescribed, barring specific legislations to the contrary.
32. In view of the above, the contention that reference of Section 439 of the Code in Section 36A(3) of the Act impliedly excludes the power of the High Court under Section 438 of the Code does not commend to us for acceptance. We are of the opinion that reference of Section 439 of the Code in Sub-sections (3) of Section 36A is in view of the non-obstante clause with which the said section opens and also to avoid any possible delusion that the special power of the High Court to grant bail at the post-arrest stage stands excluded in view of the powers conferred on the Special Court in such matters. This rather confirms the position that the power of the magistrate to release a person accused of or suspected of commission of an offence under the Act stands thoroughly excluded but does not have any bearing on the power of the High Court under Section 438 of the Code.
However, having regard to the language of the Section 37 of the Act, we are of the view that the restrictions contained therein for granting bail would also apply while entertaining a request for pre-arrest bail under Section 438 of the Code. We are thus of the opinion that Section 36A(3) of the Act does not in any way affect the power of the 12 High Court under Section 438 of the Code in respect of offences thereunder."
Considering the submissions made by the Counsel for the parties, and specifically that since, there is no specific provision under the Act, 1985, ousting the jurisdiction of the High Court to entertain application under Section 438 of Cr.P.C., this Court is of the considered opinion that Section 36-A of the Act, 1985 does not explicit oust the jurisdiction of the High Court to entertain anticipatory bail. Accordingly, the second preliminary objection raised by the Assistant Solicitor General for the respondent with regard to maintainability of the application for grant of anticipatory bail is also rejected.
It is submitted by the counsel for the applicant that according to the prosecution case, that at about 2:30 P.M. the officers of respondent noticed one Honda Activa Scooter bearing registration No. MP 07 SH 7974 on which two persons were sitting. The pillion rider was carrying two cartoons. The pillion rider ran away, and the driver of the scooter was apprehended alongwith the two cartoons. On opening the cartoons, total 4000 ampoules of injection Pentazocine were found. The co-accused Arpit Jain, who is the real brother of the applicant was arrested, whose statement under Section 67 of the Act, 1985 was recorded, in which it was stated by him that he was carrying the cartoons on the instructions of the applicant. It is submitted that the confessional statement of the co-accused Arpit Jain was not voluntary and in fact no such statement was given by him. It is further submitted that the Supreme Court in the case of Nirmal Singh Pehlwan Vs. Inspector, Customs, reported in 13 (2011) 12 SCC 298 has held as under :
"15. We also see that the Division Bench in Kanhaiyalal case [(2008) 4 SCC 668] had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis-à-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case [(1990) 2 SCC 409]. The latest judgment in point of time is Noor Aga case [(2008) 16 SCC 417] which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case [(2008) 16 SCC 417] particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with.'' In the case of Tofan Singh vs. State of Tamil Nadu reported in (2013) 16 SCC 31, the Supreme Court has referred the judgment passed in the case Kanhaiyalal vs. Union of India; 2008 (4) SCC 668 by observing as under :-
''40. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case [(2008) 4 SCC 668]. It is more so when this Court has already doubted the dicta in Kanhaiyalal [(2008) 4 SCC 668] in Nirmal Singh Pehlwan [(2011) 12 SCC 298] wherein after noticing both Kanhaiyalal [(2008) 4 SCC 668] as well as Noor Aga [(2008) 16 SCC 417], this Court observed thus: (Nirmal Singh Pehlwan case [(2011) 12 SCC 298], SCC p. 302, para 15) "15. We also see that the Division Bench in Kanhaiyalal case [(2008) 4 SCC 668] had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis-à-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case 14 relied exclusively on the judgment in Raj Kumar case [(1990) 2 SCC 409]. The latest judgment in point of time is Noor Aga case [(2008) 16 SCC 417] which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case [(2008) 16 SCC 417] particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with."
41. For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not.'' It is submitted by the counsel for the applicant that when the law laid down by the Supreme Court in the case of Kanhaiyalal (supra) has been doubted in two cases, and the matter has been referred to a larger Bench, therefore, the statement recorded under Section 67 of the Act, 1985 may be ignored and except the said statement, there is no other evidence against the applicant. It is further submitted that the applicant is ready and willing to abide by any condition which may be imposed by the Court and he will co-operate with the investigating agency.
Per contra, it is submitted by the Assistant Solicitor General for the respondent that the co-accused Arpit Jain, who is the brother of the applicant, has made a voluntary statement under Section 67 of the Act, 1985 and had stated that he had handed over the two cartoons to one Chhotu on the instructions of his brother (the applicant) who is the Medical Representative. It is submitted that as the statement made by the co- accused Ravi Jain was voluntary and in the light of 15 judgment passed by the Supreme Court in the case of Kanhaiyalal (supra) the said statement is admissible and therefore, there is a sufficient material available with the investigating agency to interrogate the applicant.
Considering the facts and circumstances of the case, coupled with the fact that the law laid down in the case of Kanhaiyalal (supra) has been doubted in two cases, and the matter has been referred to a larger Bench, as well as considering the life and liberty of a person in mind, and without commenting on the merits of this case, the application filed by the applicant for grant of anticipatory bail is allowed. It is directed that in case the applicant appears before the investigating officer within 15 days from today, then he shall be released on bail on his furnishing a personal bond in the sum of Rs.1,00,000/-(Rupees one lac only) with one surety in the like amount to the satisfaction of the Investigating Officer/ Arresting Authority.
The applicant shall co-operate with the Investigating Officer in the investigation. This order shall be subject to the conditions enumerated in Section 438 of Cr.P.C.
It is made clear that if the applicant fails to appear before the investigating officer, within a period of 15 days from today, then this order shall loose its effect.
The application for grant of anticipatory bail is accordingly allowed.
(G.S. Ahluwalia) Judge MKB