High Court rejected bail applications of two accused charged with possessing commercial quantity of Ganja under Section 20(b) NDPS Act. Court held Section 37(1)(b) mandates strict scrutiny; parity principle cannot override statutory mandatory requirements for bail.
Both bail applications rejected; applicants not entitled to release on bail.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Misc. Criminal Case No.1467 of 2020
Omkar Gupta, S/o Late Siyaram Gupta, aged about 28 years, R/o Behind R.E.S. Colony, Tongpal, Police Station Tongpal, Distt. Sukma (C.G.)
(In Jail)
---- Applicant
Versus
State of Chhattisgarh, Through Police Station City Kotwali, District Jagdalpur (C.G.)
---- Non-applicant
AND
Misc. Criminal Case No.1468 of 2020
Rakesh Umar Vaishya, S/o Amrit Umar Vaishya, aged about 30 years, R/o Near Bus Stand, Village Tongpal, Police Station Tongpal, Distt. Sukma (C.G.)
(In Jail) ---- Applicant
Versus
State of Chhattisgarh, Through Police Station City Kotwali, District Jagdalpur (C.G.)
---- Non-applicant
-----------------------------------------------------------------------------------------------------------For Applicants: Mr. Pushpendra Singh Baghel, Advocate. For State: Mr. Sunil Otwani, Additional Advocate General.
Hon'ble Shri Justice Sanjay K. Agrawal
Order On Board
04/08/2020
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common police station, they were clubbed together and heard analogously and are being disposed of by this common order.
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as in M.Cr.C.No.1099/2020, in case of co-accused, Section 37(1)(b)
(ii) of the NDPS Act has not been considered.
“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 offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless�
(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.”
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by the court concerned that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The above-stated statutory requirements are mandatory to be complied with while releasing the accused on bail.
“8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(ii) that he is not likely to commit any offence while on bail
are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.”
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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.
Ullaha v. Superintendent, Narcotic Central Bureau 3 and Union of India v. Rattan Mallik alias Habul 4 in which it has been clearly held by their Lordships of the Supreme Court that when a prosecution / conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, such provisions cannot be ignored while dealing with such an application. It has been observed in paragraph 9 of Rattan Mallik’s case (supra) as under: -
“9. The broad principles which should weigh with the court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application.”
“12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the
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Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".”
“6. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said section. They are :
(2) Under Section 24,
(3) Under Section 27-A and
(4) Of offences involving commercial quantity.
6 (2018) 13 SCC 738
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8
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my considered opinion, bail cannot be granted unless the statutory requirements contained in Section 37(1)(b) of the NDPS Act are metout and the principle of parity cannot be pressed into service by the applicants in breach of the statutory provisions contained in Section 37(1)(b)(ii) of the NDPS Act.
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order was set-aside with liberty to decide afresh in the light of the limitation imposed.
“9. Section 37 of the N.D.P.S. Act opens with a nonobstante clause. Non-obstante clause must be given its due importance. The powers of the High Court to grant bail under section 439 Cr.P.C. are subject to the limitations contained in section 37 of the N.D.P.S. Act. Once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under section 37 of the N.D.P.S. Act, in case, the Court proposes to grant bail to such a person, two mandatory conditions are required to be satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. The Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence and that he is not likely to commit any offence while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. The expression "reasonable grounds" used in section 37(1)(b)(ii) of the N.D.P.S. Act connotes substantial probable causes which in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of such satisfaction. Whether the grounds are reasonable or not depend on the circumstances in a given situation. The Court while dealing with an application for bail is not called upon to record a finding of 'not guilty' but to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. Additionally, the Court has to record a finding that while on bail, the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.
7 2019 SCC OnLine Ori 126
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“Leave granted. The appellant Satpal Singh (in Crl. Appeal. No. 462 of 2018) is before this Court, challenging the order dated 4-10-2017 passed by the High Court of Punjab and Haryana at Chandigarh in Sat Pal Singh v. State of Punjab9 rejecting his application for anticipatory bail. The High Court took note of the fact that the appellant was an accused in FIR No. 0053 dated 11-6-2017 under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the NDPS Act”), registered at Police Station Bhadson, District Patiala. Though it was argued that a coordinate Bench of the High Court had granted anticipatory bail to the co-accused, namely, Beant Singh and Gurwinder Singh, who are brothers of the appellant, as per order dated 21-9-201710 , the learned Judge was not inclined to accept the contention since there was no question of parity as far as the bail is concerned and in view of the fact that the coordinate Bench had not taken note of the limitations under Section 37 of the NDPS Act. In our view, the learned Judge is perfectly right in his approach and in declining the protection under Section 438 of the Code of Criminal Procedure, 1973 (in short “CrPC”).
10 Beant Singh v. State of Punjab, 2017 SCC OnLine P&H 3801
9 2017 SCC OnLine P&H 3802
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applications have not committed the said offences and they are not likely
to commit any offence, if released on bail.
applications. Both the applications are accordingly rejected.
Sd/(Sanjay K. Agrawal) Judge
Soma
3 issues framed by the court
Whether applicants accused of holding commercial quantity of narcotics under Section 20(b) of NDPS Act are entitled to bail under Section 439 CrPC.
Whether the principle of parity applies when a coordinate bench granted bail without considering mandatory restrictions of Section 37(1)(b) of NDPS Act.
Whether reasonable grounds exist to believe the accused are not guilty and unlikely to commit offences if released on bail.
Colour shows how this judgement treated each authority
Union of India v. Ram Samujh and anotherReferred¶43
(1999) 9 SCC 429 · Who else cites this
State of M.P. v. KajadReferred¶48
(2001) 7 SCC 673 · Who else cites this
Sami Ullaha v. Superintendent, Narcotic Central BureauReferred¶53
(2008) 16 SCC 471 · Who else cites this
Union of India v. Rattan Mallik alias HabulReferred¶53
(2009) 2 SCC 624 · Who else cites this
Union of India and another v. Sanjeev V. DeshpandeReferred¶56
(2014) 13 SCC 1 · Who else cites this
Union of India v. Niyazuddin SK. and anotherReferred¶63
(2018) 13 SCC 738 · Who else cites this
Satpal Singh v. State of PunjabReferred¶91
(2018) 13 SCC 813 · Who else cites this
Deepak Parida and another v. State of OdishaReferred¶86
2019 SCC OnLine Ori 126 · Who else cites this
3 provisions across 2 enactments
Omkar Gupta
Rakesh Umar Vaishya
State of Chhattisgarh
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
