Badar Durrez Ahmed, J. (Oral)—
CRLMA 5159/2005 in BAIL APPLN 1184/2005
Allowed subject to all just exceptions.
BAIL APPLN 1184/2005
1. This is an application for interim bail on the ground that the petitioner's husband is seriously ill. Earlier, the petitioner had filed an application for interim bail before the Sessions Court and the learned Additional Sessions Judge by an order dated 21.03.2005 dismissed the same. The petitioner is alleged to have been involved in a conspiracy of dealing in one kilogram of Heroin and it is further alleged that 125 grams of Heroin plus 100 grams of Hashish were recovered from the petitioner. This being the position, the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘the NDPS Act’) would come into play.
2. Normally, this Court would have examined the merits of the application and dealt with the same without any reference to the order passed by the learned Additional Sessions Judge. However, since some observations have been made in the order dated 21.03.2005 which are not in consonance with the position in law, therefore, I feel it necessary that the correct position be pointed out. The learned Additional Sessions Judge in the order dated 21.03.2005 observed as under:—
“3. Heard. The Hon'ble Supreme Court in Ram Samujh and Another, reported as 1999 (3) CC Cases (SC) 22, has held that even interim bail is barred in cases involving commercial quantity. This view is further followed by the Hon'ble High Court in Islammudin @ Chottey v. State of Delhi, 1993 AD (Crl.) DHC 1095, wherein it is held that interim bail shall not be granted in cases involving commercial quantity, even if the same is sought on medical or humanitarian grounds, the embargo as provided under section 35 of the ndps act, is attracted.
I, therefore, find no grounds to allow interim bail to the applicant/accused. The application is, accordingly, dismissed.”
3. A reading of the aforesaid extract would give the impression that the Additional Sessions Judge was of the view that once section 37 of the ndps act is attracted then interim bail is barred and cannot be granted. He has referred to the decisions of the Supreme Court in the case of UOI v. Ram Samujh & Anr., 1999 (3) C.C Cases (SC) 22 as also the decision of this Court in the case of Islamuddin @ Chottey v. State of Delhi, 1999 (51) DRJ 558.
4. The decision of the Supreme Court does not say that once the provisions of Section 37 of the NDPS Act are attracted then the accused is not entitled to bail. There is no such blanket prohibition contained in the Section and no such prohibition has been held by the Supreme Court. What the Supreme Court has said in the case of Ram Samujh & Anr. (supra) is that the jurisidiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act in cases, inter alia, involving punishment of more than five years. It may also be noted that the said decision of the Supreme Court was prior to the amendment of October 2001 wherein the concept of commercial quantity was inserted into the provisions of the NDPS Act including Section 37. However, that does not make any difference to the position in law as already indicated by the Supreme Court. The Supreme Court, in paragraph 5 of the aforesaid judgement, observed that:—
“bail can be granted in cases where there are reasonable ground for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail”.
So also in paragraph 8 of the judgement, the same position in law is re-stated as under:—
“8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that accused is not guilty of such offence; and
(ii) that he is not likely to commit while on bail are satisfied.”
5. It is unfortunate that in several cases, I have found that the Sessions Court has dealt with applications for bail in which section 37 of the ndps act is involved with the mindset that in such cases bail is not to be granted at all. The provisions of the Act as well as the position in law as laid down by the Supreme Court is that where section 37 of the ndps act is attracted, a person accused of offences under the NDPS Act should not be released on bail during trial “unless mandatory conditions provided in Section 37 are satisfied.” Unfortunately, the Courts below have not paid much heed to the portion within quotes in the previous sentence.
6. The decision of this Court, in the case of Islamuddin (supra) does not also hold that whenever section 37 of the ndps act is attracted, bail has to be refused as a matter of course. Paragraph 5 of the said decision in Islamuddin's case itself makes it clear that in such a situation, the court cannot grant bail unless the court is satisfied that there are reasonable ground for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The observation in the said judgement that the Court has no power to grant bail on the ground of illness or hospitalisation of the spouse or on any similar ground has to read in this context. It does not mean that even where the grounds mentioned under Section 37 are satisfied, then even in the case of illness or hospitalisation, the petitioner is not entitled to bail.
7. In the case of Rajni Devi v. The State, 2005 (1) JCC (Narcotics) 101, I had an occasion to deal with and explain the purport, ambit and sweep of the aforesaid two decisions and the provisions of Section 37 of the NDPS Act and it was observed therein as under:—
“It is quite clear that to check the menace of dangerous drugs floating in the market, Parliament had provided that the person accused of an offence under the NDPS Act should not be released on bail during trial unless mandatory conditions provided under Section 37 of the said Act are complied with. This is what has been held by the Supreme Court in the decision cited hereinabove in paragraph 8 thereof. It is clearly implies that unless the mandatory conditions are satisfied, where the bar of Section 37 is attracted, the accused should not be released on bail. This, however, does not mean that the accused cannot be released on bail under any situation. If the mandatory conditions are satisfied then the court can release a person on bail even under the NDPS Act.”
8. Upon going through the order of the learned Additional Sessions Judge dated 21.03.2005, one gets the impression that the learned Judge had the view that once Section 37 is attracted, no bail can be granted. This, I am afraid, is not the correct position in law and, therefore, I think the appropriate direction to pass in this case would be to remand the matter to the said learned Additional Sessions Judge for re-consideration of the interim bail application upon an application of the law as indicated above.
9. It is, of course, to be noted that the considerations for grant of bail in cases where section 37 of the ndps act is attracted are the same for regular bail or interim bail.
A copy of this order be sent to the concerned court as well as to the District and Sessions Judge.