Delhi High Court
Atik Ansari (In Jc) vs The State, Nct Delhi on 14 July, 2006
Equivalent citations: 131(2006)DLT463
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. This is an application for interim bail. It is alleged that 2.5 kgs of heroin was recovered from the petitioner. The percentage content of diacetylmorphine has been found to be 44.31% which comes to about 800 gms by actual content.
2. Mr Pawan Sharma, who appears for the State, submitted that the principles applicable to the grant of regular bail under Section 37 of the NDPS Act would also be applicable even in the case of interim bail. He placed reliance on the decision of the Supreme Court in the case of Union of India v. Ram Samujh and in particular he relied on paragraph 7 of the said judgment in which there is a remark that 'persons who are involved in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable and it causes deleterious effects and a deadly impact on the society'. It is further observed that such persons are a hazard to the society 'even if they are released temporarily'. Mr Sharma points out that the Supreme Court, while making that observation, made it clear that whether the question is of regular bail or temporary bail, the considerations are the same because of the seriousness of the offence.
3. The learned Counsel for the petitioner, however, argued that the Supreme Court in Dadu @ Tulsidas etc. v. State of Maharashtra etc. , while considering the provisions of Section 32A of the NDPS Act which relates to parole post sentencing, concluded that the said provision was unconstitutional because it limited the right of the court to grant parole. He submits that the question of grant of bail stands on a much lower footing than the question of parole because bail pertains to a period prior to conviction and parole pertains to a period after conviction. He pointed out that the Supreme Court was of the view that even if a person has been convicted under the NDPS Act, the court has the power to release the person on parole for good reasons. Therefore, there is no reason as to why a similar power is not read into Section 37 of the NDPS Act. He then referred to a decision of a Division Bench of this Court in Hori Lal v. State 1997 Crl L.J. 821.
4. The learned Counsel for the petitioner has also placed before me an order passed by a learned single Judge of this Court in Crl M 4302/2004 in Crl A. 193/2001 in the case of Gurminder Singh @ Lali decided on 14.07.2004. The order indicates that the State had placed reliance on the decisions of the Supreme Court in the case of Makhtool Singh v. State of Punjab 1999 (1) CC Cases (SC) 109 and Union of India v. Ram Samujh (supra) as also a decision of a Single Bench of this Court in the case of Islamuddin @ Chotey v. State of Delhi 1999 (3) CC Cases (HC) 152 in support of their argument that interim bail ought not to be granted under the NDPS Act in view of the provisions of Section 37 thereof. The learned single Judge observed that Makhtool Singh v. State of Punjab (supra) has been overruled by the Supreme Court in the case of Dadu (supra). The court observed that Section 32A which deprived courts of the power of suspending sentence was held to be void. The learned single Judge also noted the decision of the Division Bench of this Court in the case of Hori Lal (supra) wherein the Division Bench observed as under:
...Section 32-A of the Act does not in any manner affect or curtail the power of this Court to grant interim bail or suspend sentence of a convict.
5. Furthermore, the learned Counsel for the petitioner also placed before me a decision in the case of Poonam v. State in Crl M. 1744/2004 & 484/2005 in Bail Application No. 494/2004 decided on 24.01.2005. That was a matter which came up before me for the grant of interim bail which concerned a case under Sections 21 and 29 of the NDPS Act where the recovery was said to be of a commercial quantity. By that order, the petitioner was granted interim bail for a period of two weeks on the ground of the petitioner's wife's operation as also on the ground that, as there was nobody else to look after the petitioner's wife, if bail was to be rejected, it would amount to a deprivation of the petitioner's wife's right for being looked after and taken care of. It was also granted on the ground that the petitioner had no antecedent criminal history. The learned Counsel for the petitioner submits that similar circumstances arise in the present case also inasmuch as there is nobody to look after the petitioner's wife. There is only an aged father of the petitioner's wife who is over 75 years of age who cannot be expected to give proper care to his daughter as he himself requires assistance. He further submitted that there is no other case pending against the petitioner.
6. The learned Counsel for the State had the factum of the petitioner's wife's impending surgery verified and has also verified that apart from the aged father of the petitioner's wife, there is nobody else to look after her. He has stated so on instructions from SI Viresh Kumar who has also confirmed that the petitioner has no other involvements.
7. In these circumstances, considering the decisions in the case of Dadu (supra), Hori Lal (supra), Gurminder Singh (supra) as well as Poonam (supra), I am of the view that the petitioner is entitled to the grant of interim bail under the special circumstances indicated above. The petitioner is accordingly directed to be released on interim bail on furnishing a personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the concerned trial court. He shall be on interim bail for a period of two weeks from the date of his release and shall surrender immediately upon expiry of the said period.
dusty.