Koshy, J.:— This bail application was referred to the Division Bench, as the learned Single Judge disagreed with some of the observations contained in the judgment of a learned Single Judge of this Court reported in Jiju Maran v. Narcotic Control Bureau (2004 (2) KLT 690 : (2004 (2) KLJ 3). In paragraph 5 of the above decision it is held as follows
“5. In S. 57 of the Act it is said that when the Public Prosecutor opposes the application accused can be released on bail if 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. Intention of the Legislature is not to give the Public Prosecutor the power to decide whether bail has to be granted to the accused or not If S. 37 of the Act is interpreted to mean that when the Public Prosecutor says that granting of bail is opposed, the Court cannot grant bail exercising its power of discretion that would have the effect of saying that the Public Prosecutor is the Authority to decide whether bail has to be granted or refused to an accused. Power to decide whether bail has to be granted or refused to an accused is always with the Court. When an application for bail is opposed, as envisaged in S. 37 of the Act, it must be by giving reasons for not granting bail. When reasons pointed out by the Public Prosecutor are found to be sustainable, the Court has no power to grant bail unless 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. If the reasons given for opposing granting of bail are not sustainable or no reasons are given for opposing bail, Court has the discretion to grant bail. In such cases the Court has the discretion to grant bail even if the Court is not 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”.
2. After considering the above, the learned Single Judge in paragraph 7 of the order held as follows
“7. I find the contention raised by the learned Public Prosecutor to be justified. In view of the clear language employed in Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, I am afraid, I am not able to agree with the conclusion in Jiju Maran referred above. To me, it appears that, it would be sufficient for the Public Prosecutor to oppose the application for bail on either of the twin grounds - that there are no reasonable grounds for believing that the accused is guilty or that he is likely to commit offences again while on bail to justify his opposition to the application for bail”.
3. The question referred by the learned Single Judge read as follows
“Is the statement of law in Jiju Maran v. Narcotic Control Bureau (2004 (2) KLT 690 : (2004 (2) KLJ 3) that the prosecution is bound to show other reasons in addition to the two reasons mentioned in Section 37 of the Narcotic Drugs and Psychotropic Substances Act to justify opposition to a bail application, correct and valid? Does it not go against the mandate of Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act? These questions are raised.”
4. We extract Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 below:
“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 (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 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).
5. A plain reading of the above section would show that no person accused of an offence punishable for offences under section 19 or section 24 or section 27A; and also for offences involving commercial quantity shall be released on bail unless the Public Prosecutor is given an opportunity to oppose the application and even if the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds that he is not guilty of such offence and that he is not likely to commit any offence while on jail, the court can grant bail. In sub-section (2) it is stated that the limitations on granting bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Cr.P.C or any other law for the time being in force, on granting bail. The above section restricts the power of the court in granting bail. The Public Prosecutor can oppose bail application on the ground mentioned in section 37(i)(ii). He can also oppose bail application on grounds mentioned under sub section (2), that is, all grounds allowed under law. Even if the Public Prosecutor opposes, it is for the court to consider whether such opposition is correct or not while granting bail. In Jiju Maran's case the Court observed if the reasons given for opposing granting of bail were not sustainable or no reasons were given for opposing the bail, the court has the discretion to grant bail. Even if the Public Prosecutor is not opposing the application, the court should be conscious and should consider whether the grounds are existing for granting bail. In effect what is decided in Jiju Maran's case is that finally it is for the court to decide whether the conditions are satisfied or not. In Jiju Maran's case, it is not stated that only on the two conditions mentioned under section 37(1)(ii) bail can be opposed by the Public Prosecutor.
6. As far as this application is concerned, we are of the opinion that the question is mere academic. The applicants herein were charge-sheeted for offences punishable under section 20(b)(ii)(C). The allegations in the charge sheet prima facie show that out of the total quantity of 31.150 k.grams of ganja, the 1st accused was found carrying 15 kg. and 50 grams folded in his waste, the 2nd accused was found in carrying 6 kgms. in a bag and 5 kgm in a suit case and 50 grams in his waste and 3rd accused was carrying 5 kg. and 50 grams in his waste. If that be so, even though total quantity as above is a commercial quantity, each of the accused was in possession of only a lesser than the commercial quantity. If the accused were not in possession of the commercial quantity, Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act will not apply. It is reported that the accused were in prison from 26-10-2007 and thy had undergone 167 days imprisonment and the charge sheet was already filed. Considering the facts and circumstances of the case, we are of the opinion that this is a fit case for granting bail on stringent conditions.
7. Hence, the applicants shall be released on bail on executing bond for Rs. 1 lakh each with two solvent sureties each for the like amount to the satisfaction of the trial court. The applicants shall also undertake that they should not engage any similar offence during the period when they are on bail and they shall not leave the State. They shall cooperate with the trial.
8. We make it clear that the prima facie finding regarding possession of quantity involved in this case is only for the purpose of disposal of the bail application and the trial court is free to decide the matter on the basis of the evidence at the time of trial.
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