2014 (7) TMI 1068 - HC - Customs

Court Cancels Bail Order for Non-Compliance with NDPS Act

The court allowed the application for cancellation of bail, finding that the bail order granted to the respondent-5th accused was not in compliance with ... Cancellation of bail orders - parameters of Section 37 NDPS Act - Held that:- there must be some thing more than prima facie grounds, within the meaning of reasonable grounds as a substantial probable cause for believing that accused is not guilty of such offence, and another requirement of satisfaction of the Court is that he is not likely to commit any offence while on bail; and in the absence of showing the material the accused is not entitled to the concession of bail by virtue of rider under Section 37 of the Act; irrespective of the Qualified (not absolute) fundamental right of personal liberty as part of the fundamental rights of the individualenshrined under Article 21 of the Constitution of India; by virtue of the legal bar to say a person who waived the constitutional privilege of liberty by involved in the grave crime, in the larger interest of society cannot be given concession of individual liberty. Here, practically, Section 37 of NDPS Act is a special provision and it starts with thenon-obstante clause in showing irrespective of what is contained in Chapter XXXIII of Criminal Procedure Code, Section 37 of the Act prevails in case of conflict to override and in case of no conflict and reconcilability, to consider as additional consideration (vide section 51 of the Act). Here thecancellation of bail sought for is not by raising any subsequent or supervening circumstance or violation of conditions, to say said principle of law has no application to the facts, when the contention is the bail granted without proper consideration of Section 37 of the Act, hence to recall or cancel for Section 37 of the Act does not able the accused to the concession. It is important to note the fact that the contraband, involved in this case is a commercial quantity, which is undisputedly a psychotropic substance either in one category or the other very nearer to it. The provisions that to be kept in mind are Section 35- mensrea a reverse onus clause putting burden on accused to rebut the presumption the Court shall draw till rebutted of the culpable mental state; similarly under Section 54 regarding possession, which needless to say includes a conscious possession – whether physical or constructive as suffice of awareness about a particular fact from State of mind is criteria - it is the duty of the court to recall its own order granting bail, within the parameters of law more particularly by invoking Section 482 Cr.P.C. - application is allowed under Section 482 R/W. 439(2) Cr.P.C. R/W. 37 NDPS Act by recalling the bail order and for all purposes by cancelling the bail forthwith - accused to surrender before the authorities - Decided in favour of Revenue. Issues Involved:1. Whether there are just grounds to recall or cancel the bail order granted to the respondent-5th accused and if so, on what grounds and under which provisionRs.2. To what resultRs.Issue-wise Detailed Analysis:1. Grounds for Cancellation of Bail:The prosecution agency filed an application under Section 437(5) instead of Section 439(2) read with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) to cancel the bail order granted to the 5th accused. The primary contention for the cancellation was that the learned judge did not properly consider the scope of Section 37 of the NDPS Act, which prohibits the grant of bail for certain offences unless specific conditions are met. Section 37(1)(b) stipulates that bail cannot be granted unless the Public Prosecutor is given an opportunity to oppose the application and the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.2. Legal Precedents and Arguments:The prosecution cited several legal precedents to support their contention:- Babua Vs State of Orissa: Emphasized that bail should not be granted if prosecution statements, if believed, would result in conviction.- Intelligence Officer, Narcotics Control Bureau Vs Shambhu Shankar: Bail cannot be granted unless the Public Prosecutor is heard and the court is satisfied that the accused is not guilty and not likely to commit any offence while on bail.- State of M.P. Vs Kajad: Court's satisfaction under Section 37(1)(b)(ii) must be based on the record.- Union Of India v. Rattan Mallik @ Habul: Highlighted that the conditions under Section 37 of the NDPS Act are cumulative and must be satisfied for granting bail.The counsel for the accused argued that there were no grounds to cancel the bail and that the bail granted was valid within the scope of Section 37 of the NDPS Act. They relied on the Apex Court's expression in Union Of India v. Rattan Mallik @ Habul, which stated that while considering bail under Section 37 of the NDPS Act, the court need not record a finding of 'not guilty' but must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit an offence while on bail.3. Analysis of the Bail Order:The court observed that the bail order did not properly consider the mandatory requirements of Section 37 of the NDPS Act. The court noted that the contraband involved was of commercial quantity, and the provisions of Section 37(1)(b) were not adequately addressed. The court emphasized that the satisfaction of the court regarding the accused being not guilty must be based on substantial probable causes and not merely prima facie grounds.4. Inherent Powers of the Court:The court discussed the inherent powers of the court to recall its own order under the principle 'Actus Curiae Neminem Gravabit' (an act of the court shall prejudice no one). The court highlighted that the inherent powers preserved by Section 482 of the Criminal Procedure Code (Cr.P.C.) allow the court to undo a wrong or irregularity to meet the ends of justice.5. Compliance with Legal Provisions:The court noted that the disclosure statement made by the accused (A.5) was relevant and admissible for considering the bail application. The statement indicated the accused's complicity in the conscious possession of the psychotropic substance. The court also addressed the contention regarding the non-compliance with Section 50 of the NDPS Act, stating that it was not applicable as no personal search was conducted.6. Conclusion and Order:The court concluded that the bail order was granted without proper consideration of the mandatory requirements under Section 37 of the NDPS Act. Therefore, the court allowed the application under Section 482 R/W. 439(2) Cr.P.C. R/W. 37 NDPS Act, recalling and canceling the bail order. The respondent-5th accused was directed to surrender before the authorities within five days, failing which the officials were authorized to apprehend him and submit him to judicial custody.7. Observations for Future Proceedings:The court clarified that the observations made in the bail application were limited to considering the scope of Section 37 of the NDPS Act and should not influence the trial judge or any other forum for any remedy invoked by the petitioner.Result:The application for cancellation of bail was allowed, and the bail order was recalled and canceled. The accused was directed to surrender, with provisions for apprehension if he failed to do so.