JUDGMENT
T.N.K. Singh, J.
1. Heard Mr. N. Brojendra, learned Counsel for the petitioner/complainant as well as Mr. L. Jayanta, learned Counsel appearing for the respondent/accused.
2. By this petition under Section 397(1), 401 and 439(2) of the Criminal Procedure Code, 1973 the petitioner/complainant is assailing the impugned order dated 16.06.2006 passed by the learned Special Judge (Shri Th. Sudhir Singh) granting bail to the respondent/accused, Shri Ashem Ibungo Singh alias Nungshi in N.C.B. Case No. 1/4/NCB/IMP/Ganja/CL/2006 under Section 8(c), 20(b)(ii)(C), 29 and 60 of the NDPS Act.
3. The case of the prosecution in the said case No. 1/4/NCB/IMP/Ganja/CL/2006 is that on 18.04.2006 at about 1200 hrs on a specific telephonic information received by the petitioner/complainant from the C Coy, Commander 35th Assam Rifles, C/O 99 APO at Khongsang Village on NH 53 under Nungba Sub Division, Tamenglong District, Manipur, two persons namely, (i) Laishram Rajen Singh, Driver, s/o (L) L. Ibohal Singh, r/o Yairipok Kaina Village, PO and PS Yairipok, District Thoubal, Manipur and (ii) Ashem Ibungo Singh, Co-Driver, s/o A Mani Singh, r/o Kongpal Ningthoubung Leikai, PO & PS Porompat District, Imphal East, Manipur who were coming from Imphal side for Jiribam in a civil Tata Truck bearing registration No. MN 04-6951 driven by L. Rajen Singh with co-driver, A Ibungo Singh were intercepted at the check post of C Coy, 35th Assam Rifles, Khongsang Village on NH 53. On checking the said Tata Track at Khongsang village post, the Assam Rifles personnel recovered 190 packets of contraband Ganja weighing 3,608 kgs, which were concealed/loaded in the secret cavity specially constructed inside the body of the Truck. It is said that the value of the contraband Ganja is Rs. 86,59,200/- (Rupees eighty six lacs fifty nine thousand two hundred) only outside Manipur State.
4. After the said Tata Truck along with the contraband Ganja were seized by the personnel of the Assam Rifles, the said driver i.e. L. Rajen Singh and also the respondent/accused Shri A. Ibungo were arrested. On 19.04.2006 the said driver, the present respondent/accused, and Tata Truck bearing Registration No. MN 04-6951 along with the said contraband Ganja weighing 3608 kgs were handed over to the present petitioner for further investigation of the case.
5. It is said that in the course of investigation of the said case, the respondent/accused, Shri A. Ibungo Singh was interrogated and his statement was also recorded by the I.O. Copy of the statement of the respondent/accused i.e. Ashem Ibungo Singh recorded by the Investigating Officer is available at page 69 of the present Criminal Revision. The respondent/accused, Shri Ibungo stated very clearly that on 10.04.2006 he met his friend L. Rajen Singh, the Driver (co-accused) who proposed him to accompany him as assistant of the Driver as he was to carry some quantity of ganja in his truck. It is said that the respondent/accused was also made known the owner of the ganja and also he had been assured by the co-accused/driver i.e. L. Rajen Singh that he would be paid a sum of Rs. 5000/- (Rupees five thousand) as reward for assisting the driver in transportation of the said contraband ganja. Thereafter, the accused/respondent had decided to assist the co-accused/driver, L. Rajen Singh in transporting the contraband ganja from Imphal to Jiribam by the said Tata Truck bearing Registration No. MN 04-6951. Thereafter, they had decided to wake up early in the morning i.e. 13.04.2004 and he met the co-accused, Driver, L. Rajen Singh at New Checkon who arrived there by driving the said Tata Truck along with the contraband ganja. From there, they proceeded to Jiribam on NH 53. After reaching none they had their lunch. After lunch, they continued their trip towards Jiribam on the same road i.e. NH 53. On reaching Khongsang, the Assam Rifles Check Post, they were stopped by the personnel of the Assam Rifles. On checking the said Tata Truck, the personnel of Assam Rifles recovered the said contraband ganja from their said Tata Truck. On 19.04.2006, in the morning at about 9 am the respondent/accused, A. Ibungo and the co-accused/driver, L. Rajen Singh were handed over along with the seized Tata Truck and contraband ganja to the NCB Officers. After they were handed over to the NCB Officer by the Assam Rifles personnel on 19.04.2006 they were taken to the Regional Unit Office of NCB at Imphal. Thereafter, the Criminal Case No. l/4/NCB/IMP/Ganja/CL/2006 under Section 8(c), 20(b)(ii)(C), 29, 60 of the NDPS Act was registered against the driver, L. Rajen and the respondent/accused Shri Ashem Ibungo.
6. The offence under Section 20(b)(ii)(C) is punishable for regorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Section 37 of the NDPS Act deal with circumstances and condition under which bail could be granted. For easy reference Section 37 of the NDPS Act is quoted hereunder:
37. Offence 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. 27-A and also for offences involving 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 offences while on bail.
(2) The limitation on granting of bail specified in CI. (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 grant of bail.
7. From bare perusal of Section 37 of the NDPS Act it is clear that the concerned Court can only grant bail on the application filed by the accused for the offence under Section 20(b)(ii)(C), 29 and 60 of the NDPS Act, 1995 when there is no reasonable ground for pleading that he is guilty of the concerned offence and that, he is not likely to commit any offence while on bail. The Apex Court in Babua @ Tazmul Hossain v. The State of Orissa: 2001(1) Supreme 411 had discussed the circumstances under which the bail application under Section 37(1)(b) could be entertained. In Babua @ Tazmul Hossain v. The State of Orissa (Supra) the Apex Court held that the Court at the stage of consideration of bail, the Court is to see whether statements made on behalf of prosecution witnesses, if believable, would result in conviction of petitioner or not. Liberty of a citizen has got to be balanced with interest of the society. In the cases where narcotic drugs and psychotropic substances are involved, accused would indulge in activities which are lethal to the society, thereafter it would certainly be in interest of society to keep such persons behind bars during pendency of proceedings before the Court. Para 3 of the Supreme in Babua @ Tazmul Hossain v. The State of Orissa (Supra) read as follows:
3. In view of Section 37(1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail alone will entitle him to a bail. In the present case the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other law.
8. Again, the Apex Court in State of Madhya Pradesh v. Kajad: 2001 (6) Supreme 844 held that in any case 2nd bail application for bail should not be entertained, if there be no change in circumstances. Para nos. 8,9 and 10 of the Supreme in State of Madhya Pradesh v. Kajad read as follows:
8. In the instant case, the learned Single Judge of the High Court has granted the bail on his own sense of observation regarding the course of conduct adopted by the accused at the time of his interception and arrest. Merely because the accused was found to be continuing to hold bag containing opium during the period, the raiding party searched him in accordance with the provisions of the Act, the learned Judge was not justified to conclude “it is by itself unnatural”. How the learned Judge concluded that the conduct of the accused or raiding party were unnatural is not discernible from the impugned order. A person, apprechended by a raiding party who is sought to be scarched is supposed to hold the goods in his possession unless he opts to flee from the place of occurrence or advised to throw the container in which the offending substance is contained. Section 37 of the Act has been referred in the impugned order not for the purposes of showing of its compliance but to justify the passing of an apparently wrong order. If, besides referring to Section 37 of the Act, the learned Judge would have referred to its provisions, he would not have fallen a prey to the ulterior designs of the respondent accused.
9. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. Case No. 2052 of 2000 on 05.06.2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. but without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa and Anr. and various other judgments.
10. We are satisfied that the impugned order having been passed in violation of the provisions of the Act by ignoring the mandatory requirements of Section 37 and the conditions governing the grant of bail under the Code of Criminal Procedure and is thus not sustainable. Accordingly, the appeal is allowed by setting aside the order impugned. The respondent accused shall surrender and his bail bonds are cancelled. He shall be taken into custody during the trial of the offence with which he has been charged.
9. The Apex Court had also discussed the circumstances under which the revisional power of the Court under Section 397, 401 and 482, Cr. P.C. are to be exercised in Dr. P. Nulla Thampy Thera v. Union of India and Ors. . The scope of revisionsal jurisdiction under Section 401 is to confer upon the superior Court- a kind of paternal or supervisory jurisdiction- in order to correct miscarriage of justice arising from musconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercise in the interest of justice with regard to all facts and circumstances of each particular case. And also under Section 379 of the Cr. P.C. the High Court possesses the general power of superintendence over the actions of Courts subordinate to it which discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power or revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this section, the High Court can, at any stage, on its won motion, if it so desires and certainly when illegalities and irregularities resulting in injustice are brought to its notice, call for the records and examine them. Para 128, 129 and 130 of the SCC in Dr. P. Nalla Thampy Thera v. Union of Indiaand Ors. (Supra) read as follows:
128. Sections 379, 401 and 482 of the new Code are analogous to Sections 435, 439 and 561-A of the old Code of 1898 except for certain substitutions, omissions and modifications. Under Section 397, the High Court possesses the general power of superintendence over the actions of Courts subordinate to it which discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power of revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this Section, the High Court can, at any stage, on its own motion, if it so desires and certainly when illegalities and irregularities resulting in injustice are brought to its notice, call for the records and examine them. The words in Section 435 are, however, very general and they empower the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceeding of any subordinate Court.
129. By virtue of the power under Section 401, the High Court can examine the proceedings of inferior Courts if the necessity for doing so is brought to its notice in any manner, namely (1) when the records have been called for by itself, or (2) when the proceedings otherwise comes to its knowledge.
130. The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal Courts- a kind of paternal or supervisory jurisdiction- in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case.
10. This Court in Senaram Das and Ors. v. Kashiram Das : 1995 (2) GLT423 held that revisional Court may in an appropriate case exercise the power available to a Court of appeal. However, before exercising the said power it must appear to the Court that there has been a manifest error of law or failure of justice apparent on the face of it.
11. The learned Counsel for the petitioner also strenuously submits that the earlier bail application filed by the respondent/accused in connection with the Criminal Case No. 1/4/NCB/lMP/Ganja/CL/2006 had been rejected by the very Court, i.e. Special Judge (ND and PS), Imphal. and, there was no subsequent development at the time of filing the subsequent bail application, i.e. Cril (B) No. 43 of 06. In this regard, by referring to the decision of the Apex Court in State of Madhya Pradesh v. Kajad (Supra) submits that both the applications ought to have been rejected inasmuch as there was absolutely no change in the circumstances.
12. This Court is of the considered view that submission of the learned Counsel for the petitioner basing on the ratio laid down by the Apex Court in the State of Madhya Pradesh v. Kajad (Supra) has the force of law.
13. The impugned bail order dated 16.06.2006 is cryptic and nothing has been spelt out from the impugned order what are the subsequent developments after the earlier bail application filed by the respondent/accused was rejected.
14. The Apex Court also in Babua @ Tazmul Hossain v. The State of Orissa (Supra) held that even the statement of the prosecution witness shall also be takeninto consideration, if they are believable. As discussed in the present case in hand, the respondent/accused in his statement before the investigating officer had clearly stated that he along with the co-accused L. Raj en Singh had decided to transport the said contraband ganja in the said vehicle i.e. Tata Truck bearing registration No. MN-04/6951 from Imphal to Jiribam. It also appears from the impugned order dated 16.06.2006 that the learned Special Judge, NDPS has not applied his mind to the materials available on record, i.e the statement of the PWs and others in the case diary at the time of passing the impugned bail order dated 16.06.2006.
15. This Court, keeping in view of the ratio laid down by the Apex Court in the cases discussed above, can exercise the revisional power when there is manifest error of law in passing the impugned order by the subordinate Court and also that, this Court is exercising the revisional power, in order to correct the miscarriage of justice arising from the misconception of law, irregularity in procedure and neglect of proper precaution committed by the lower Court in passing the impugned order.
16. For the reasons discussed above, this Court is of the considered view that the learned Special Judge, NDPS had committed manifest error and irregularity in passing the impugned bail order dated 16.06.2006. Further, this Court is of the view that the learned Special Judge, NDPS had neglected the proper precaution to be taken in considering the bail application filed by the accused for the offence under the said section of the NDPS in passing the impugned bail order dated 16.06.2006.
17. For the reasons discussed above, the impugned bail order dated 16.06.2006 is hereby set aside. Accordingly, the Criminal Revision Petition is allowed. The respondent/accused shall surrender and his bail stands cancelled. He shall be taken into custody during the trial of the offence that he has been charged. However, this Court hopes and trusts that the trial of the Criminal Case No. 1/4/NCB/IMP/Ganja/CL/2006 shall be completed as expeditiously as possible. Further, liberty is granted to the accused/complainant to file bail application, if there be change circumstances.