TaxTMI 
TaxTMI 
2001 (8) TMI 317
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....ernment granting the respondent No. 1 immunity from prosecution under Section 64 of the Act. In this appeal, we are concerned with the scope of the power under Section 64 of the Act and whether it can be exercised by the Central Government in favour of a person after the Sessions Judge has rejected an application by such person for pardon under Section 307 of the Code of Criminal Procedure, 1973. 3. Proceedings under the Act were initiated against inter alia the appellant and the respondent No. 1 on two separate complaints of the Narcotics Control Bureau (briefly referred to as 'NCB') being SC No. 136/89 and SC No. 233/88. The appellant is the principal accused in both cases. The allegation is that he was the kingpin of an international network of drug smugglers. According to the prosecution, the evidence against the appellant included 'chits' recording some details regarding the smuggling of drugs and contacts in the United States of America and a tape recording of a conversation between the appellant and the respondent No. 1 relating to the smuggling of drugs to the USA. 4. On 23rd November, 1989 the respondent No. 1 applied to the NCB to be made an approver as he....
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.... available evidence against him is the 'Chits' recovered from his house. The other evidence is his intercepted telephonic conversation with Shri Vipin Jaggi" (namely the respondent No. 1 herein). The order took note of the rejection of the respondent No. 1's application for pardon by the Sessions Judge but went on to state that the powers under Section 64 of the Act were independent of and did not conflict with the powers conferred on the Court under Sections 306 and 307 Cr.P.C. The NCB was of the opinion that the evidence which would be rendered by the respondent No. 1 was "mainly the identification of the voice and corroboration and explanation of recorded conversation" between the respondent No. 1 and the appellant which was "crucial" for the prosecution of the appellant. It was also recorded in the order that the respondent No. 1 had been medically examined on 24-4-1992 by the Associate Professor, Department of Psychiatry, All India Institute of Medical Sciences and found to be normal. The immunity which was granted to the Respondent No. 1 from prosecution in the pending case was made subject to the withdrawal of such immunity under Section 64(3), if the respondent No. 1 did no....
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.... Suresh Chandra Bahri and Others v. State of Bihar - AIR 1994 SC 2420) to hold that immediately upon the tendering of immunity to the respondent No. 1 under Section 64, the respondent No. 1 would stand discharged whereupon he ceased to be an accused and could be examined as a witness. 10. The appellant then filed an application under Article 215 of the Constitution read with Section 482 Cr.P.C for recalling the order dated 31-1-2000. This was rejected by the High Court on 18-8-2000. In this appeal, the appellant has challenged both the orders dated 31-1-2000 as well as 18-8-2000. 11. At the outset a preliminary objection raised by the respondent No. 1 is dealt with. According to the respondent No. 1 this appeal has been preferred from an order passed in proceedings to which the appellant was not a party and the appellant has not challenged the order by which his application for intervention was rejected. It is contended that in the circumstances, the appeal preferred before us is not maintainable. The objection, assuming that it had some force, does not survive the order passed by this Court on 3rd November, 2000 granting permission to the appellant to file the spec....
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....ok, the others or at least the principal offender can be convicted. ".....The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lacks of evidence." Suresh Chandra Bahri v. State of Bihar - 1995 Supp. (1) SCC 80, 106. 17. The provisions of Sections 337 and 338 of the 1898 Cr.P.C. have been substantially re-enacted as Sections 306 and 307 of the present Cr.P.C. For the purposes of this case, however, we are concerned only with Section 307 which provides : "307. Power to direct tender of pardon. - At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person." 18. Although the power to actually grant the pardon is vested in the Court, obviously the Court can have no interest whatsoever in the outcome nor can it decide for the prosecution whether particu....
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....ticipation and wholly in the abstract. 20. The role of the prosecutor under Section 307 is distinct and different from the part he is called on to play under the provisions of Section 321 Cr.P.C. Under Section 321, the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. The most noticeable difference between this Section and Section 307 of the Act is that unlike the grant of pardon under Section 307, withdrawal from prosecution under Section 321 Cr.P.C. is unconditional although it does provide for the express permission of the Central Government in specified cases. Section 321 also does not spell out the circumstances under which the power may be exercised, either by the prosecution or by the Court in granting consent. However, it has been judicially recognised that "implicit in the grant of power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to ....
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.... Section 4(1) of the Act, the Central Government is obliged to take all such measures as are deemed necessary for the purpose of preventing and combating the abuse of narcotic drugs and psychotropic substances and the illicit traffic therein. By Notification S.O. No. 96(E), dated 17th March, 1985, the Central Government constituted the Narcotics Control Bureau (NCB) in exercise of its powers under Section 4(3) of the Act to discharge the powers and functions of the Central Government under the Act subject to the superintendence and control of the Central Government. 25. It is, in the circumstances, clear that when cases are started on the complaint of the NCB, it is not a mere complainant but is the Executive and it must act in discharge of a mandate statutorily cast upon it to effectively check among other activities, the illegal dissemination and smuggling of drugs. 26. As early as in 1968 this Court had expressed the hope that : "Perhaps it will be possible to enlarge Section 337 to take in certain special laws dealing with customs, foreign exchange etc., where accomplice testimony will always be useful and witnesses will come forward because of the conditiona....
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.... the trial. It is true that the words 'immunity from prosecution' have been used, but the phrase does not mean anything more than the power to withdraw from prosecution. That, as has been noted earlier, can be exercised at any time in the course of the trial, but before judgment is delivered. 30. However, according to the appellant the word 'prosecution' is limited to the initiation of proceedings and, therefore, the grant of immunity cannot be made subsequently. We are of the opinion that no principle of interpretation requires a statutory provision to be broken down to the words which constitute it and then after defining each word individually weld them together to arrive at the meaning of a phrase. Words take their colour from the context in which they are used. Given the nature and object of the power, the word 'prosecution' must in the context of Section 64 mean the entire proceeding till the judgment of the Court is delivered. It may be pointed out that the words 'prosecution' and 'punishment' have been held to have no fixed connotation and they are susceptible of both a wider and a narrower meaning. [See S.A. Venkataraman v. Union of India - AIR 1954 SC 376.] 31.....
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....es hold that prosecution only means the initiation of proceedings. 36. The order under Section 64 was fully operative when the applications under Section 311 to examine the respondent No. 1 were filed by the prosecution before the Sessions Judge. The refusal of the applications under Section 311 by the Sessions Judge in fact would result in the withdrawal of the immunity granted to the respondent No. 1 under Section 64 since the immunity had been granted to the respondent No. 1 subject to the condition that evidence would be tendered by him in the pending cases. The Sessions Judge could not sit in appeal over the decision of the NCB more so when no one had challenged the order under Section 64 before him. 37. The power conferred on the NCB is not an arbitrary one. Reasons are required to be recorded in writing. Needless to say, the reasons would have to be appropriate and germane to the object sought to be achieved by the exercise of such power. We have scrutinised the order dated 18th August, 2000 and are satisfied that the reasons recorded for granting the immunity to the respondent No. 1 are neither extraneous nor relevant. 38. There is no conflict betwee....