Indian Kanoon - Search engine for Indian Law

13. We respectfully disagree with the view expressed in Kerala High Court's Full Bench in Berlin Joseph that Section 37, NDPS Act does not override Section 167(2), Criminal Procedure Code. Although note is taken of Kishanlal as also of Rajnikant, the holdings of these decisions have not received the consideration they deserve. The decision found it necessary and legitimate to accord primacy to Section 167(2) taking the view that if Section 37, NDPS Act has to prevail against it, "the legislative directive contained in Section 167(2) loses is commanding force". At para 16 of the report the anxiety expressed is, if Section 37, NDPS Act is conceded overriding effect "practically no accused can be released on bail even after the said period of 60/90 days". Before us also, Counsel vocalised the judicial anguish : "Unless he is set free, he will continue to remain in detention. But how-long". We entertain no such apprehension that a person accused of an offence under NDPS Act is led into a blind tunnel, even if in some cases he may have to pass through a long one when there is intervention of Interpol or C.B.I. because of his supposed involvement in inter-State or international conspiracy. Merely because the pre-trial detention -can be a long one in any particular case, the plain legislative intendment to the contrary cannot be judicially frustrated, in our view. As held in Amar Nath, AIR 1972 SC 1548 the Courts are not concerned with the policy of the legislature or with the result, whether injuries or otherwise; to give effect to the language used in the Statute when the meaning is clear is the bounden duty of the Courts. We have noted, however, the global concern of increasing drug-traffic-crimes with international ramification and involvement of large doses of muscle or fire power and money power of which judicial notice is imperated by Article 51(a) of the Constitution.

14. Long pre-trial detention is an anathema but it is not unconstitutional, nor even it is a novelty. Under Section 20(4), Terrorist and Disruptive Activities (Prevention) Act, 1987, for short, TADA, even one year's ceiling is contemplated and is made inexorable; the provisions of Sub-sections (8) and (9) thereof are in pari materia with Section 37, NDPS Act. Article 21 of the Constitution regulates State power in terms of the requirement of "reasonable procedure"; the Constitution does not make the State impotent, unable to defend itself and its peace-loving citizens against any kind of clandestine organised activity, overtly violent or covertly so, impinging on public safety and security of State. The anti-drug traffic Covenants of United Nations of 1961, 1971 and 1988 have international community's support and sanction. They derive authority from Article 25 of the United Nations Declaration of Human Rights, 1948 and Article 12 of the International Covenant on Economical, Social and Cultural Rights, 1966. As a Member-State of United Nations, India has implemented the 1988 Covenant by amending the NDPS Act and incorporating therein the new bail provisions and also other stringent provisions aforestated. The judicial discretion contemplated in terms of Section 37, NDPS Act has to be exercised independently irrespective of any other consideration except of the "limitations" expressly prescribed. Without reference to the requirement of submission of charge-sheet, the discretion can be exercised by the Court to order release of a person accused of an offence under the Act at any stage of the; pre-trial detention if the Court is not satisfied that, as contended by the prosecution, the accused is guilty of an offence or is likely to commit any offence while on bail. There is no cause, therefore, to be unduly sceptic or despondent.

16. Learned Amicus Curiae, Shri J. P. Gupta, referred to us a Division Bench decision of Calcutta High Court rendered on an identical provision, Section 13A of the Essential Supplies (Temporary Powers) Act, 1946, as amended in 1950, in Badri Prasad v. State, AIR 1953 Cal. 28. It was held that the proviso represented a new species of non-bailable offence with its own rules for bail contemplating the requirement that "the Court has to believe at least prima facie that the accused is not guilty." Although clauses (a) and (b) of Section 13-A are couched substantially in the same language as of sub-clauses (i) and (ii) of Section 37, NDPS Act the material difference is absence therein 'of the positive requirement of ascertaining if the accused "is not likely to commit any offence while on bail". The words "any offence" in the setting, context and collocation being referable primarily to the ground of arrest imply thereby the duty of the Prosecution to place before the Court such antecedents of the accused as have a bearing on the crime for which he is arrested. Both requirements contemplated under Section 37(1)(b)(ii), NDPS Act are mandatory and constitute jointly the basis of Court's jurisdictional competence to decide the prayer for bail. Badri Prasad's view appears to us reasonable and acceptable that the Legislature has not altered by enacting the said Section 13-A the time-honoured basic tenet of criminal jurisprudence concerning presumption of innocence. We hold the same view in respect of Section 37(1)(b)(ii), NDPS Act. We are unable to endorse Bhavarsingh's holding that' "burden" is on the accused to show that "prima facie he is not guilty". The question really is of Court's own satisfaction or belief and exercise of its discretionary powers. "Bail or jail?" is a question, as held in Gudikanti Narasimhulu, AIR 1978 SC 429, which "largely hinges on the hunch of the Bench, otherwise called judicial discretion". Nature of charge, punishment prescribed and accused's antecedents, the Court held, are relevant for exercising the discretion. When the prayer for bail is considered the Court acts on materials available in the case-diary which the Court must objectively screen and sift to reach its own contemplated satisfaction. Because the accused has no right to peruse the case diary, no "burden" can be placed on him to establish his prima facie innocence. The decision in Balchand's case, AIR 1977 SC 366 (cited in Bhavarsingh) was rendered on Rule 184 of the Defence Internal Security of India Rules, 1971; it cannot be said to have taken a contrary view merely because it decided that the said Rule did not override Section 438, Criminal Procedure Code.

17. In the Orissa case, Sanatan Sahu, (supra), facts were similar to that of Rajnikant in that validity of cancellation of the bail had to be examined and that was done following Rajnikant's ratio. The view taken was that bail before charge-sheet could be granted in terms of Section 167(2) proviso to fulfil the legislative "command". No reasons are given except that another decision of the Court is cited as holding Section 167(2) proviso to be applicable to a proceeding under NDPS Act. In the Karnataka case Kamlabai, (supra) the question was of High Court's bail power and that was traced to Section 439 Criminal Procedure Code, outside Section 37, NDPS Act, upon holding that High Court was not "Court" within the meaning of the term employed in Section 37. Both decisions, in our view, are affected by Apex Court's Kishanlal's holding because, as has been held at the Summit level, even High Court cannot grant bail outside Section 37, NDPS Act by invoking Section 167(2), Criminal Procedure Code. This Court's Division Bench decision in Kalika Prasad (supra) is based squarely on Section 167(2), Criminal Procedure Code. It does not refer to any provision of NDPS Act and no reason is given for the view summarily taken that Section 167(2), Criminal Procedure Code is invokable by a person arrested under NDPS Act praying for bail to High Court. We overrule Kalika Prasad because the view taken is untenable in the face of Apex Court's decision is Kishanlal's case.