TaxTMI 
TaxTMI 
2016 (2) TMI 1370
X X X X Extracts X X X X
X X X X Extracts X X X X
....8223; for short) are not satisfied. In other words, the issue is whether the provisions and conditions of Section 37 of the NDPS Act would apply only to cases of "bail" or would also apply when the accused seeks "interim" bail. 2. We have had the advantage of hearing arguments by Mr. A.J. Bhambhani, learned Senior Advocate, who was appointed as an Amicus Curiae, Mr.Rahul Mehra, Standing Counsel (Criminal) who had appeared for the Government of NCT of Delhi and Mr.Rajesh Manchanda, Advocate for the Narcotics Control Bureau. 3. Section 37 of the NDPS Act reads as under: "37. Offences to be cognizable and non-bailable.- (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 2 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ative stipulations in Section 37 of the NDPS Act are not satisfied. Is "interim" bail different from regular bail? And whether requisites of Section 37 would equally apply and bind a Court when it considers a prayer for grant of "interim" bail? 6. The term 'bail' is not defined in the Code, although the expression 'bailable offence' has been defined in Section 2(a) of the said Code. The term 'bail' was given a judicial interpretation by the Supreme Court in Moti Ram & Ors. vs. State of M.P., (1978) 4 SCC 47 as judicial release from custodia juris. Bail is granted on one's own bond, with or without surety and includes release on recognizance. Bail, sometimes referred as regular bail, is granted during the course of trial or after the conviction when the sentence is suspended, and is usually till the final pronouncement and decision by that Court. On the question as to the nature of an order deciding a bail application, in Usmanbhai Dawoodbhai Menon vs. State of Gujarat, (1988) 2 SCC 271, the Supreme Court held that an order granting or refusing bail is an "interlocutory order'' since no finality is attached to such order. 7. In Moti Ram (supra) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....12(1) and 12A of the COFEPOSA Act by the Government or its functionaries in accordance with the parole rules or administrative instructions framed by the Government. There is no statutory provision dealing with the grant of parole and administrative instructions have been framed by different States. In this context it was observed: "The Courts cannot, generally speaking, exercise the power to grant temporary release to detenus, on parole, in cases covered by COFEPOSA during the period an order of detention is in force because of the express prohibition contained in clause (6) of Section 12. Temporary release of a detenu can only be ordered by the Government or an Officer subordinate to the Government whether Central or State. I must, however, add that the bar of judicial intervention to direct temporary release of a detenu would not effect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Articles 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on parole for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjustifiabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the NDPS Act. To articulate and pronounce the said axiom, the Supreme Court referred to the distinction between "parole" and "bail" to hold that "parole" cannot be equated with "bail" and "suspension of sentence" for the said terms have acquired different meanings. If a person applies for suspension of sentence or bail, he has to comply with Section 32A or 37 of the NDPS Act, as the case may be. The aforesaid decision clearly illustrates that the bar of section 32A, would not prohibit grant of "parole" when it is justified and necessary and parole applications should be dealt with and examined in accordance with the statutory framework or Jail Manual or Government Instructions. The aforesaid decision was referred to in Atik Ansari (supra) and "interim bail" was granted to the applicant for a period of two weeks from release. The Single Judge in the reference order has highlighted the counsel's contention that when a convict under the NDPS Act can be granted parole, there is no reason or justification to hold that an accused or convict under the NDPS Act cannot be granted "interim" bail. 11. We are conscious and aware of the fact that the expression 'bail‟ and "paro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....challenged and as held in Mukesh Kishanpuria (supra). 14. Referring to the decision of the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia Vs. State of Punjab (1980) 2 SCC 565 in Siddharam Satlingappa Mhetre (supra), it has been held that any direction that an accused released on anticipatory bail, must submit himself to custody and thereafter only apply for regular bail would be contrary to Article 21 of the Constitution, for directing an accused to surrender to custody even for a limited period, amounts to deprivation of personal liberty. Referring to Sibbia's Case, it was observed as under:- "106. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of which an order under this section could be granted. We deem it appropriate to reproduce some observations of the judgment of the Constitution Bench of this Court in the Sibbia's case (supra). "10........The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Article 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce. On this aspect reference can be made to Dadu @ Tulsidas (supra), which interprets Section 32A of the NDPS Act and upholds right to parole even when an accused stands convicted. Courts are bound by statutes which regulate their exercise of discretion and power to grant bail, and they equally interpret these statutes, when there is an ambiguity and doubt regarding their application, restriction etc.. Interpretation must elucidate the meaning which should be given to the statutory provisions, keeping in view the language used in the provision and if necessary adopt purposive interpretation when the language is capable of different interpretations. Legal interpretation is required in consonance with the statute and also the principles of bail jurisprudence. 17. The expression "interim" bail is not defined in the Code. It is an innovation by legal neologism which has gained acceptance and recognition. The terms, "interim" bail /"interim" suspension of sentence, have been used and accepted as part of legal vocabulary and are well known expressions. The said terms are used in contradistinction and to distinguish release on regular bail during pendency of trial or appeal till final ad....