In this second bail application under Section 439 Cr.P.C. for offences under the NDPS Act involving commercial quantity, the High Court dismissed the plea, holding that liberality in bail under the Cr.P.C. cannot override the strict limitations of Section 37 of the NDPS Act.
Bail application dismissed; petitioner kept in custody.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 8551/2021
Manoj Kumar S/o Hari Singh, Aged About 35 Years, R/o Gorakhpur Ps Bhuna Dist. Fatehbad Haryana (Presently Confined In Central Jail Jaipur)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent For Petitioner(s) : Mr. Rajneesh Gupta For Respondent(s) : Mr. S.S. Ola, PP
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
16/07/2021
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[CRLMB-8551/2021]
Ram Vs. State of Rajasthan passed in S.B. Criminal Misc. Bail Application No. 8801/2019.
under:-
“20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained Under Section 439 of the Code of Criminal Procedure, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said Section is in the negative form prescribing the enlargement of bail to any person Accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
22. We may further like to observe that the learned Single Judge has failed to record a finding mandated Under Section 37 of the NDPS Act which is a sine qua
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non for granting bail to the Accused under the NDPS Act.
23. The submission made by learned Counsel for the Respondents that in Crime No. 14/2018, the bail has been granted to the other Accused persons(A-1 to A- 4), and no steps have been taken by the prosecution to challenge the grant of post-arrest bail to the other Accused persons, is of no consequence for the reason that the consideration prevailed upon the Court to grant bail to the other Accused persons will not absolve the act of the Accused Respondent(A-5) from the rigour of Section 37 of the NDPS Act.
24. The further submission of the learned Counsel for the Respondents that they have been falsely implicated in Crime No. 19/2018 for the reason that the batchmates of the excise official, Babu Varghese was convicted in the corruption case on the trap being laid down by the Respondent-Shajimon(A-1) is only a conjecture of self-defence, and no inference could be drawn of false implication, more so when in Crime No. 19/2018 and 14/2018, charge-sheets have been filed after investigation and the matter is listed before the learned trial Judge for framing of the charge where the Accused Respondents certainly have an opportunity to make their submissions.
25. That apart, in the application which was filed before the learned Single Judge of the High Court by the Appellant Under Section 482 Code of Criminal Procedure, the learned Single Judge has also prima facie accepted that error has been committed in granting bail to the Accused Respondents as observed in para 16 of the impugned judgment as under:
On going through the orders granted on 10.5.2019 allowing bail applications of A1 and A3 on the one hand and 5th Accused on the other hand in NDPS crime Nos. 19/2018 and 14/2018 respectively, I find that the bail was granted by the Court after being cognizant of the principles laid down in Section 37 of the Act whether it ultimately turned out to be right or wrong. May be as regards 3rd Accused was concerned, order was passed under misconception of facts. Likewise, the criminal antecedents concerning the first Accused did not fall to the notice of this Court. What could at the most be said of the order passed by this Court is that it was erroneous or it did not involve application of mind. But then the question arises is whether the same court could under law reconsider the facts invoking Section 482 of the Code. I am of the opinion that the remedy of the State lay in challenging the orders of this Court, if it was really aggrieved, before a
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superior forum and not before the same court. Therefore, accepting the argument of the learned Counsel for the Accused, I hold that none of the applications seeking to recall the order of this Court is maintainable under law.
26. In the result, the appeals are allowed and the impugned order passed by the High Court releasing the Respondents on bail is hereby set aside. Bail bonds of the Accused Respondents stand cancelled and they are directed to be taken into custody. The trial Court is directed to proceed and expedite the trial.
27. Pending application(s), if any, stand disposed of.
(INDERJEET SINGH),J
CHETNA BEHRANI /8
2 issues framed by the court
Whether bail should be granted under Section 439 Cr.P.C. when offences under the NDPS Act involve commercial quantity of drugs.
Whether the statutory restrictions under Section 37 of the NDPS Act prevent the grant of bail despite claim of false implication.
Colour shows how this judgement treated each authority
Ram Vs. State of RajasthanReferred¶12
Ram Vs. State of Rajasthan
State of Kerala Vs. Rajesh Etc.Distinguished¶17
State of Kerala Vs. Rajesh Etc. (2020) 12 SCC 122 · Who else cites this
3 provisions across 2 enactments
Manoj Kumar
State Of Rajasthan
Inderjeet Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
