JUDGMENT
S.K. Chattopadhyaya, J.
1. The question in this case is to be decided as to whether the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herinafter described as NDPS Act for short), are applicable to the High Court while exercising its power under Section 439 of the Code of Criminal Procedure (for brevity the Code).
2. The petitioner was arrested in Mohania P.S. Case No. 124 of 1993 on the basis of an FIR registered under Sections 8, 17 and 21 of the NDPS Act. On a confidential report, the officer-in-charge of Mohania Police Station conducted a raid along with the Raiding Party and arrested the petitioner along with 11 other persons named in the FIR recovered several quantities of heroin from all those arrested persons. It is alleged in the FIR that on seeing the Raiding Party, the persons who were either purchasing, selling or consuming heroin wanted to flee away but 12 persons were arrested on the spot. The petitioner was among those 12 arrested persons and from whose possession three purias of Heroin measuring about one gram was recovered.
3. The petitioner moved for bail before the learned Sessions Judge and by order dated 2-9-1993, the prayer was rejected and as such this application for bail before this Court.
4. Mr. Pandey, learned Counsel appearing on behalf of the petitioner has submitted that as the informant who is a S.I. of Police has no power under the Act to make search, seizure and arrest, the arrest is illegal and the petitioner is entitled to be released on bail. In support of his submission, he has drawn my attention to Annexure-3 and has submitted that notification issued under Section 41(1) of the N.D.P.S. Act, the Government of Bihar has empowered the officers of and above the rank of Inspector of Police to make seizure and arrest. It is further contended by Mr. Pandey that Section 50 of the N.D.P.S. Act casts an obligation on concerned officer to inform the person to be searched that he has option of making requisition to be taken before the Gazetted Officer or the Magistrate. But this mandate of law has not been fulfilled and as such the search, seizure and arrest was/were without jurisdiction. In a nutshell, the contention of Mr. Pandey is that as the mandatory provisions of the N.D.P.S. Act were not followed in this case, the search, seizure and arrest of the petitioner were illegal and as such the petitioner is entitled to be released on bail. In support of his contention, Mr. Pandey has relied upon decisions of several High Court, namely:
(1) 1988 Cr. Law Journal 528,
(2) 1990 Cr. Law Journal 1990,
(3) 1991 Vol. 1 SCC 705,
(4) 1993 Vol. 2 CCR 167 (67),
(5) 1993 Vol. 2 CCR 1319,
(6) 1993 Vol. 2 CCR 149 (SC),
(7) 1993 Vol. 2 CCR 1205 and ;
(8) 1993 Vol. 2 CCR 1575,
5. Mr. Pandey has also referred some of the orders passed by different learned Judges of this Court and has submitted that under same facts and circumstances, the accused were released on bail by this Court. In this connection he has referred to order dated 23-8-1993 passed in Cr. Misc. No. 11276 of 1993, order dated 29-7-1993 passed in Cr. Misc. No. 4674/93, order dated 20-9-1993 passed in Cr. Misc. No. 3284/93, order dated 2-11-1993 passed in Cr. Misc. No. 15255/93 and order dated 14-10-1993 passed in Cr. Misc. 5833 of 1993.
6. Mr. Ramesh Chandra, learned Counsel appearing on behalf of the State has, on the other hand, submitted that power of this Court to grant bail under Section 439 is subject to Section 37 of the N.D.P.S. Act and before granting bail, the High Court must be satisfied that there are reasonable ground for believing that the accused is not guilty of such offence and secondly, that the accused is not likely to commit any offence while on bail. It is further submitted that non-compliance of provision of Sections 41, 42, 43 or 50 of the NDPS Act can be taken into consideration at the time of trial and not while disposing of an application for bail. He has further submitted that seizure list which has been annexed with the petition bears the signature of the petitioner and as such it cannot be disputed that the petitioner was found in possession of heroin as alleged.
7. Mr. Ramesh Chandra further submits that the point as to whether provisions of Section 41(1) and 50 of the Act were complied with or not, can be seen at the time of trial but even then the petitioner is not entitled to be released on bail only on that account for the simple reason of limitations imposed in Section 37 of the Act.
8. In order to appreciate the rival contention of the parties, it will be useful to keep in mind the object for legislating the Act by the Parliament. The Act was enacted with the object to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psycho-tropic substances. The Act deals with the offences which have got the potential to cause serious injury to the society as a whole, as compared to any offences under other laws. There can be no laxity in the enforcement of the provisions of the Act.
9. Keeping this intention of the Parliament in mind, one has to approach the cases relating to drug offences. Sections 15 to 35 deal with various offences and penalties. Special Courts are constituted under Section 36 and this section empowers the Government to constitute Special Courts and a person shall not be qualified for appointment as a Judge of he Special Court unless the is immediately before such appointment, a Sessions Judge or Addl. Sessions Judge. Section 36-A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate, Sub-section (3) of Section 36-A contemplates as follows:
Section 36-A(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 (2 of 1974), 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.
Section 37 of the Act was amended in the year 1989 and reads as follows:
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 a term 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 ground 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.
10. In order to appreciate the argument advanced by the parties, it becomes necessary also to have glance to the provisions as laid down under Section 439 of the Cr. P.C. which is in the following term:
439. Special powers of High Court or Court of Session regarding bail.-(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section ;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court of the Court or Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter arrested and commit him to custody.
11. The N.D.P.S. Act is a special enactment and Section 37 of the Act, as quoted above, starts with a non-obstante clause and is in negative terms limiting the scope of the applicability of the provisions of Code of Criminal Procedure regarding bail. In Interpreting the scope of Section 37 of the Act, the apex court in the case of Narcotics Control Bureau v. Krishan Lal and Ors. , has observed as follows:
Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P.C. regarding bail, in our view, it cannot be held that the High Courts powers to grant bail under Section 439 Cr. P.C. are not subject to the limitation mentioned under Section 37 of NDPS Act. The non-obstante clause with which the section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr. P.C. and Section 37 of the NDPS Act, Section 37 prevails.
After taking note of the provisions laid down in Section 4 of the A their Lordships have further observed:
It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr. P.C. should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi v. Union of India regarding the mode of interpretation the Supreme Court observed as follows:
The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognized canons of construction is that the Legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the court should adopt literal construction if it does not lead to an absurdity.
The apex court has further observed in the same case that:
As already noted, Section 37 of the NDPS Act starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of Cr. P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.
12. After discussing various case laws, the Supreme Court has finally held as follows:
For all the aforesaid reasons we hold that the powers of the High Court to grant bail under Section 439, Cr. P.C., 1973 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the court under the said section are applicable to the High Court also in the matter of granting bail.
13. From the aforesaid discussion of settled principle of law on this point, it is clear that the powers to grant bail under any of the provisions of Criminal Procedure Code should necessarily be subject to the condition mentioned in Section 37 of NDPS Act.
14. The rigour of Section 37 of the Act can be viewed with another angle. The Full Bench of the Orissa High Court in the case of Banka Das and Ors. v. State of Orissa 1993 Cr. L.J. 442, while considering the scope of Section 167 (2) of the Cr. P. C, vis-a-vis Section 37 of the Act, has held that Section 167 (2) proviso of the Code of Criminal Procedure is subject to Section 37 of the Act, which also opens with a non-obstante clause excepting all provisions of bail contained in the Code and making it clear that a person shall not be released on bail unless the conditions stipulated are satisfied. Therefore, even if by operation of Section 167(2) proviso, an accused becomes entitled to bail yet he shall not be released on bail until the Court is further satisfied that the conditions stipulated in Section 37 are satisfied. Section 37 of the Act overrides Section 167 (2) of the Code because it is a special statute.
15. The similar view has been expressed by another Full Bench of the M. P. High Court in the case of Ram Dayal v. Central Narcotic Bureau 1993 Cr.L.J. 1443. Before the Full Bench, it was argued on behalf of the petitioner that if Section 37 of the NDPS Act is held to have overriding effect practically no accused can be released on bail even after the said period of 60/90 days. It was canvassed that unless the petitioner is set free, he would continue to remain in detention but how long. The Full Bench has replied the question in following words:
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 of C. B. I. because of his supposed involvement in Inter-State or International conspiracy. Merely because the pre-trial detention can he a long one in any particular case, the plain legislative iatendment to the contrary cannot be judicially frustrated, in our view.
16. A learned Single Judge of the Madras High Court in the case of Soemairaj and Ors. v. Assistant Collector of Central Excise 1993 Cr LJ 844 has come to the same conclusion by observing that the Act deals with the offences which have got the potential to cause serious injury to the society as a whole, as compared to any other offences under other laws. The learned Judge further observed that there can be no laxity in the enforcement of the provisions of the Act. The offence investigated in a case this Act, has national and international ramifications and it is not easy to complete the investigation and file a complaint within a time bound schedule of 90 days or so. Concluding the discussion, the court held that if, therefore, in spite of this awareness, the accused person is allowed to go on bail on any technical plea such as the one canvassed before the court that would defeat the very object of law.
17. After noticing the aforesaid authoritative pronouncement, let us look to the limitations imposed by Section 37(1) of the Act. Section 37(1)(b) envisaged that a person who is accused of an offence punishable for a term of imprisonment of five years or more under the NDPS Act shall not be released on bail or on his own bond unless an opportunity to oppose the bail application has been given to the Public Prosecutor and the court must be satisfied that 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.
(Emphasis supplied)
18. Taking into consideration this aspect of the matter, in my considered opinion, even assuming that it is possible for a Court to be satisfied by going through the allegations made against the accused and the statements recorded by the Investigating agency, that there are reasonable grounds for believing that the accused is not guilty of such offence, but can the court be satisfied beyond all reasonable doubt that if the accused is released on bail, he is not likely to commit any offence on bail, I am of the opinion that this satisfaction cannot be arrived at by a court of law while considering a bail application. We have to bear in mind that the trafficking in narcotic drugs is a menace to the society at large and to curb such menace the Act has been amended to implement United Nations 1988 Covenant mandating its Member-Nations to recognise “the importance of strengthening and enhancing effective legal means for International cooperation in criminal matters for suppressing International criminal activities of illicit traffic” in narcotic drugs. United Nation’s serious concern has been expressed in the following words:
Children are used in many parts of the world as an illict drug consumers market” and that the traffic in drug “pose a serious threat to the health and welfare of human beings and adversely affect the economic culture and political foundations of the society.
19. In the instant case, the FIR shows that the petitioner was apprehended with other 11 (eleven) persons and from possessions of each one of them not only narcotic substance like Heroin but some money were also recovered. Some were found consuming heroin. From possession of the petitioner 3 purias of heroin were recovered.
Having regard to the allegation aforesaid, in my considered opinion, it will be too much for the court to be satisfied while considering an application for bail that the accused will not indulge again in such nefarious activities if released on bail.
20. Next limb of argument is that in view of Annexure-3, the S. I. of Police who had arrested the petitioner and seized the alleged drugs was not empowered to do so. Annexure-3 reveals that exercising power under Sub-section 42*1) of the Act, some officers were authorised to perform the duties specified in Section 42 within the area of their respective jurisdiction.
Section 42(1) of the Act enumerates power of entry, search, seizure and arrest without warrant or authorisation. It further contemplates, inter alia, that any such officer (being an officer superior in rank to a Peon, Sepoy or Constable) of the Revenue, Drugs Control, Excise, Police or any other department of State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset detain and search, and if he thinks proper, arrest any parson whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance.
Reading this provision in its proper perspective, it is clear that an officer who is superior in rank to a Peon, Sepoy or Constable of the Police who has been empowered either by general or special order of the State Government to detain and search and also arrest any person if he has reason to believe that such offences have been committed by the accused persons.
21. It is nowhere stated in the petition that Shri R. D. Sharma, S. O. of Mohania Police Station who is admittedly superior in rank to a Peon, Sepoy or Constable of the police department was not empowered by the State Government to arrest the petitioner and seize the heroin from the accused persons including the petitioner. In my opinion, this fact can also be considered at the time of trial. As I have held that the petitioner is not entitled for bail for infraction of any such technical flaw, if any.
22. Similarly as to whether the petitioner is entitled for bail for alleged non-compliance of provisions of Section 50 of the Act, I am of the opinion that the same question also can be looked into effectively by the trial court itself during trial.
23. In the case of Banka Das and Ors. (supra), the Full Bench of the Orissa High Court has taken the view that Section 50(1) cast no obligation on concerned official to inform person to be searched that he has option of making requisition to be taken before Gazetted Officer or Magistrate. The Full Bench has further held that alleged infraction of some statutory provision is not sufficient to quash arrest and detention.
24. The decisions relied upon by Mr. Pandey need not be discussed in view of the authoritative decision of the apex court in the case of Narcotics Control Bureau (supra) and the Full Bench decisions of the Orissa High Court as well as M. P. High Court. The decision of the Supreme Court aforesaid has settled the law beyond doubt that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the court under the said section are applicable to the High Court also in the matter of granting bail. In none of the case laws, cited on behalf of the petitioner, this pronouncement of the Supreme Court on this point, if I say so with great respect, has been appreciated.
25. Learned Counsel for the petitioner has placed before me different orders passed by this Court from time to time granting bail to the persons accused under the NDPS Act. I am of the opinion that those orders cannot have any binding force as none of the order reveals that the learned Judges have taken into consideration the limitations imposed by Section 37 of the Act on the High Court for grant of bail. It is also clear from the aforesaid orders that decision of the Supreme Court as aforesaid was not brought to the notice of the learned Judges of this Court. In such view of the matter, I am unable to agree with the aforesaid orders of this Court.
26. Having considered the pros and cons of the facts of the case and relevant points of law and case laws, 1 am of the opinion that the petitioner is not entitled to be released on bail and as such the prayer for bail of the petitioner is refused.
27. In the result, this application is dismissed.
