In a bail application for commercial quantity heroin possession under the NDPS Act, the Kerala High Court held that Section 37 restricts bail powers. Finding no reasonable grounds to believe the petitioner is not guilty, the court dismissed the application.
Bail application dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 3RD DAY OF NOVEMBER 2015/12TH KARTHIKA, 1937
Bail Appl..No. 5660 of 2015
CRIME NO. NOT KNOWN
PETITIONER(S)/A3:
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JAYACHANDRAN K.R. @ JAYACHANDRAN @ UNII @ CHANDRABABU @ MURINA,, INDIAN NATIONAL, AGE 42, S/O.SH. KRISHNAN, R/O. TC 78/723 (NEW) TC 42/1407, DWARAKA, SANGAMAM NAGAR, VALLAKADAVU, THIRUVANANTHAPURAM-8.
BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR
RESPONDENT(S):
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THE INTELLIGENCE OFFICER, NCB, NARCOTIC CONTROL BUREAU, SUB ZONE KOCHI, REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, NARCOTIC CONTROL BUREAU, ERNAKULAM - 682 031.
BY ADV. SRI.M.V.S.NAMBOOTHIRY
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30-10-2015 THE COURT ON 03-11-2015, PASSED THE FOLLOWING:
msv/
A.HARIPRASAD, J.
-------------------------------------B.A. No.5660 of 2015
Dated this the 3rd day of November, 2015
ORDER
Bail application filed under Section 439 of the Code of Criminal Procedure (in short, “Cr.P.C.”) by the third accused in S.C.No.728 of 2015 on the file of the Additional Sessions Judge-IV, Thiruvananthapuram, involved in O.R.No.4/NCB/SZ/COZ of Narcotics Control Bureau, Sub Zone, Cochin.
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“ 37. Offences to be cognizable and nonbailable. -(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-
(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.
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(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.”
“Section 37 as amended starts with a nonobstante clause stating that notwithstanding anything
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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 a special enactment and 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 S.37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr.P.C. regarding bail, it cannot be said that the High Court's powers to grant bail under S.439, Cr.P.C. are not subject to the limitation mentioned under S.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 S.439, Cr.P.C. and S.37 of the NDPS Act, S.37 prevails. The provisions of S.4, Cr.P.C. also make it clear 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. Consequently the power to grant bail under any of the provisions of Cr.P.C. should necessarily be
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subject to the conditions mentioned in S.37 of the NDPS Act.”
India v. Rattan Mallik ((2009) 2 SCC 624) contended that apart from giving an opportunity to the Public Prosecutor to oppose the bail application as provided under Section 37(1)(b)(i) of the NDPS Act, the other twin conditions set out in Section 37(1)(b)(ii) have to be satisfied. The ratio reads as follows:
“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 Code of Criminal Procedure, 1973, but 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. The conditions are cumulative and not alternative. The satisfaction
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contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression “reasonable grounds” in Section 37 (1)(b)(ii) has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.”
view that there are no reasonable grounds prima facie for holding that he is not guilty of any offence. Therefore, I do not find any reason to consider his plea for bail at this stage.
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under the Act should be released on bail. Although the principle is unquestionable, the ratio in that case is inapplicable to this case considering the facts and circumstances. Therefore, I find no merit in the bail application. Hence it is dismissed.
A. HARIPRASAD, JUDGE.
cks
3 issues framed by the court
Whether bail should be granted to the third accused charged under the NDPS Act for possessing commercial quantities of heroin.
Whether Section 37 of the NDPS Act restricts the powers of the High Court under Section 439 Cr.P.C. to grant bail.
Whether there are reasonable grounds to believe the petitioner is not guilty or unlikely to commit an offence while on bail.
Colour shows how this judgement treated each authority
Narcotics Control Bureau v. Kishan LalRelied on¶42
Narcotics Control Bureau v. Kishan Lal (AIR 1991 SC 558) · Who else cites this
Union of India v. Rattan MallikRelied on¶51
Union of India v. Rattan Mallik ((2009) 2 SCC 624) · Who else cites this
Supreme Court Legal Aid Committee representing undertrial prisoners v. Union of IndiaDistinguished¶57
Supreme Court Legal Aid Committee representing undertrial prisoners v. Union of India ((1994) 6 SCC 731) · Who else cites this
4 provisions across 2 enactments
Jayachandran K.R. @ Jayachandran @ Unii @ Chandrababu @ Murina
The Intelligence Officer, NCB, Narcotic Control Bureau, Sub Zone Kochi
A. Hariprasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
