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State Of M.P v. Kajad .
Factual and Procedural Background
Acting on specific information, police officers from Police Station Jawad, District Neemuch, Madhya Pradesh, apprehended the respondent on the night of 24-3-2000 and seized 7 kg of opium from a bag in his possession after complying with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”). Samples were taken for testing and a charge-sheet was filed for an offence under Section 18 of the Act, which carries a minimum sentence of 10 years’ rigorous imprisonment.
The trial court rejected the respondent’s first bail application. The High Court (Misc. Criminal Case No. 2052 of 2000) also refused bail on 5-6-2000. Without citing any change in circumstances, the respondent filed a second bail application in August 2000, which was adjourned several times and ultimately allowed by the High Court. The State appealed to the Supreme Court, resulting in the present judgment.
Legal Issues Presented
- Whether the High Court erred in granting bail to an accused charged under Section 18 of the Act without satisfying the stringent conditions set out in Section 37.
- Whether a second bail application can be entertained in the absence of any change in circumstances, or whether doing so amounts to an impermissible review of an earlier bail order.
Arguments of the Parties
Appellant (State) Arguments
- The High Court ignored the mandatory restrictions of Section 37 of the Act, merely mentioning the provision without applying it.
- Granting bail after an earlier rejection, with no change in circumstances, constituted an unlawful review of the previous order.
- The High Court adopted a “casual approach” to a serious NDPS offence punishable by a minimum of 10 years’ imprisonment.
Respondent (Accused) Arguments
The opinion does not record any specific arguments advanced by the respondent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Maktool Singh v. State of Punjab (1999) 3 SCC 321 | Strict limitations on bail under Section 37; bail may be granted only when court is satisfied the accused is not guilty and will not re-offend. | Reinforced the proposition that bail is an exception under the Act; relied on to show the High Court’s order was contrary to law. |
| Intelligence Officer, NCB v. Sambhu Sonkar (2001) 2 SCC 562 | Reiterated the rigorous standard for granting bail in NDPS cases. | Cited as authority supporting denial of bail absent compliance with Section 37. |
| D. Sarojini v. State of A.P. (2001) 4 Supreme 179; (2001) 7 SCC 677 | Affirmed the limited discretion to grant bail under the Act. | Used to underscore that liberal bail is “uncalled for” in NDPS offences. |
| Hari Singh Mann v. Harbhajan Singh Bajwa (2001) 1 SCC 169 | Successive bail applications without change in circumstances amount to an impermissible review. | Applied to hold the High Court’s second bail order unsustainable. |
Court's Reasoning and Analysis
The Supreme Court emphasized that Section 37 renders NDPS offences non-bailable and imposes a two-fold test: (1) the court must have reasonable grounds to believe the accused is not guilty, and (2) that he is unlikely to commit an offence while on bail. These conditions are in addition to ordinary CrPC limitations, and a “liberal approach” is inappropriate.
The High Court’s order was found deficient because it:
- Relied on the judge’s personal perception that the accused’s behaviour during the search was “unnatural,” without evidentiary basis.
- Did not record satisfaction of the statutory twin conditions in Section 37(1)(b)(ii).
- Ignored that a previous bail application had been dismissed and no new circumstances were shown, thereby amounting to an impermissible review, contrary to Hari Singh Mann.
Consequently, the High Court’s grant of bail was held to violate both Section 37 of the Act and settled precedent.
Holding and Implications
Appeal Allowed; Bail Order Set Aside. The respondent’s bail bonds were cancelled and he was directed to surrender and remain in custody during trial.
Implications: The judgment reaffirms the strict statutory regime governing bail under the NDPS Act and confirms that successive bail applications require demonstrable change in circumstances. It does not create new precedent but strengthens existing jurisprudence on the mandatory nature of Section 37.
R.P Sethi, J.— Leave granted.
2. Acting upon a definite information received by Police Station Jawad, District Neemuch, Madhya Pradesh, force was deployed and the respondent-accused apprehended on the night of 24-3-2000. After compliance with the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called “the Act”), opium weighing 7 kg was seized from the accused which he had kept in his bag. After completing necessary procedural formalities and getting the samples tested, a charge-sheet was submitted against the accused in the competent court. Application for bail moved by the accused was rejected by the trial court. Dissatisfied with the rejection of his bail application, the respondent-accused moved an application in the High Court which was registered as Miscellaneous Criminal Case No. 2052 of 2000. The said application was rejected by the High Court vide order dated 5-6-2000. Without mentioning any change in the circumstances, the respondent-accused moved another application in the High Court in the month of August 2000 which was adjourned from time to time and ultimately allowed vide the order impugned in this appeal.
3. Learned counsel appearing for the appellant State has contended that the High Court has committed an error of law by granting bail to the respondent-accused ignoring the provisions of Section 37 of the Act, though merely making a mention of it in the impugned order. It is further contended that in the facts and circumstances of the case, the High Court was not justified in granting the bail to the accused in view of the dismissal of his earlier bail application and in the absence of any change in the circumstances. The learned Judge granting the bail is stated to have adopted a casual approach in dealing with a heinous crime committed under the Act. It is submitted that the order granting the bail amounts to reviewing the earlier order which is not permissible in criminal cases.
4. It is not disputed that the accused was apprehended and charged for the commission of an offence punishable under Section 18 of the Act which is punishable with rigorous imprisonment for a term, not less than 10 years but which may extend to 20 years and is also liable to a fine of not less than one lakh rupees.
5. Section 37 of the Act provides that the offences under the Act shall be cognizable and non-bailable. It reads:
“37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973—
(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 grounds 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, or any other law for the time being in force on granting of bail.”
The purpose for which the Act was enacted and the menace of drug trafficking which it intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for.
6. In Maktool Singh v. State of Punjab (1999) 3 SCC 321 this Court considered the scope of Section 37 along with the scheme of the Act and held:
“17. The only offences exempted from the purview of the aforesaid rigours on the bail provisions are those under Sections 26 and 27 of the Act. The former is punishable up to a maximum imprisonment for three years and the latter up to a maximum imprisonment for one year. For all other offences, the court's power to release an accused on bail during the period before conviction has been thus drastically curtailed by providing that if the Public Prosecutor opposes the bail application, no accused shall be released on bail, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.”
To the same effect are the judgments of this Court in Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar (2001) 2 SCC 562 and D. Sarojini v. State of A.P (2001) 4 Supreme 179, (2001) 7 SCC at p. 677
7. 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 a 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 was unnatural is not discernible from the impugned order. A person, apprehended by a raiding party, who is sought to be searched is supposed to hold the goods in his possession unless he opts to flee from the place of occurrence or is advised to throw the container in which the offending substance is contained. Section 37 of the Act has been referred to 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.
8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 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 (2001) 1 SCC 169 and various other judgments.
9. 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.
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