Court dismissed bail application under Section 439 Cr.P.C. Held that NDPS Act overrides Cr.P.C. regarding bail limits. Applicant in judicial custody for 7 years has not completed half of maximum 20-year sentence for commercial quantity offence.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 7087/2022
Sukhvinder Singh @ Kaka S/o Bachhan Singh @ Guru Bachchan Singh, Aged About 28 Years, R/o Village Miran Plant, Tehsil Ratia P.s. Ratia Sadar Dist. Fatehabad Harayana (Presently Confined In Central Jail Ajmer)
----Applicant
Versus
State Of Rajasthan, Through Public Prosecutor.
----Respondent For Applicant(s) : Mr. Sharwan Singh Rathore For Respondent(s) : Mr. S.S. Mehla, PP
HON'BLE MR. JUSTICE SAMEER JAIN
Order
22/09/2022
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relied upon provisions of Section 436A of Cr.P.C. and the order of Hon’ble Apex Court in the case of Bhim Singh Versus Union of India reported in (2015) 13 SCC 605 . He has submitted that in the light of Section 436A of Cr.P.C. and in light of the Apex Court judgment, under trial prisoners should be enlarged on bail, if they have undergone half of the maximum sentence in prison for the alleged offence committed by them. He has also submitted that the applicant’s role was trivial. Learned counsel has also relied upon Co-ordinate Bench judgment of this Court in S.B. Criminal Miscellaneous Bail No.5199/2017 dated 03.05.2017 and S.B. Criminal Misc. 3rd Bail Application No.2414/2019 dated 05.03.2019, wherein, Co-ordinate Bench of this Court granted bail to co-accused in cases where the contraband in question was also of commercial quantity.
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that the case of the applicant is distinguishable from the coaccused in terms of the quantity of the recovered contraband, role of the applicant and the criminal antecedents.
reproduced as under:-
“37. Offences to be cognizable and nonbailable.�
(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.”
it is analyzed that provisions of the NDPS Act have an over-riding effect over the provisions of the Cr.P.C. Secondly, as per Section 15 of the NDPS Act, the maximum period of sentence that can be awarded for the said offence is of 20 years. Therefore, even if dictum of Hon’ble Apex Court order in the case of Bhim Singh (supra) is taken at face value, the present accused-applicant has not yet completed 10 years of sentence to be entitled for grant of bail. Further, on consideration of the judgment of Hon’ble Apex Court in the case of State of Kerala and Ors. Versus Rajesh and Ors. (supra), this Court is convinced that the dictum of the Apex Court in the case of Bhim Singh (supra) will not be applicable to the case in hand. For the reasons, firstly, that NDPS Act is a special piece legislation and as per Section 37(2) of the Act, it has an over riding effect over the provisions of the Cr.P.C.; secondly, the Apex Court has held that until and unless there are “reasonable grounds” - which means something more than prima facie grounds and contemplates substantial probable cause - to
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believe that the accused is not guilty of the alleged offence, bail should not be granted, unlike the general law of bail as rule and jail as an exception ; thirdly, as per provisions of Section 15, the maximum sentence which can be awarded for the offence at hand is 20 years and the applicant has merely undergone a period of 7 years as on date.
(SAMEER JAIN),J
Arun/3
3 issues framed by the court
Whether bail should be granted under Section 439 Cr.P.C. given the limitations imposed by the NDPS Act on bail for offences involving commercial quantities.
Whether the decision in Bhim Singh Versus Union of India regarding Section 436A Cr.P.C. applies to cases under the NDPS Act.
Whether the applicant satisfies the requirement of undergoing half of the maximum sentence for bail eligibility under NDPS Act interpretations.
Colour shows how this judgement treated each authority
Bhim Singh Versus Union of IndiaDistinguished¶24
(2015) 13 SCC 605 · Who else cites this
State of Kerala and Ors. Versus Rajesh and Ors.Followed¶24
(2020) 12 SCC 122 · Who else cites this
5 provisions across 2 enactments
Sukhvinder Singh @ Kaka
State Of Rajasthan
Sameer Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
